V  • 

f 


II 


AUG2    1979 


Ilntuorcitu    nf    Fti.., 


NEW  EDITION,  issi  -REVISED  AND  ENLARGED. 
TESTIMONIALS 

TO 

ELWELL'S  MEDICO-LEGAL  TREATISE 

ON 

MALPEACTICE 


MEDICAL  EVIDENCE. 

AND 

INSANITY, 


From  the  great  English  Physiologist, 

WILLIAM   B.   CARPENTER,   M.  D.,   F.  R.  S.,   F.  G.  S., 

Professor  of  Medical  Jurisprudence  in  the  University  of  London. 

"  I   KNOW   OF   NO   INSTANCE   IN   WHICH   THE  COMBINATION  OF   LEGAL  AND 

MEDICAL  KNOWLEDGE  HAS  BEEN  so  REMARKABLY  SHOWN  AS  IT  HAS  IN 
MR.  ELWELL'S  TREATMENT  OF  THE  SUBJECTS  HE  HAS  UNDERTAKEN." 


From  Prof.   Frank  Hastings  Hamilton,  author  of  a  new  and  valuable  work  on  Fractures  and 

Dislocation**. 

To  Prof.  ELWELL  belongs  the  credit  of  having  opened  the  way  in  this 
directioa — always  the  most  difficult  labor.  The  book  must  prove  of  great 
value  both  to  medical  men  and  to  lawyers.  Indeed,  I  do  not  see  how  a  lawyer 
can  dispense  with  it. 

I  congratulate  the  author  also  upon  the  favorable  notices  which  it  has 
received  from  the  journals  everywhere. 


From  Prof.  David  Brainard,  Editor  Chicago  Medical  Journal. 

This  book  appears  to  be  a  full  and  perfect  treatise  on  the  subjects  of  whica 
it  professes  to  treat.  It  has  received  the  endorsement  of  some  of  tbi  most 
eminent  legal  men  as  well  as  of  physicians  in  this  country,  and  from  a  cursory 
examination  it  appears  to  be  full,  accurate,  and  prepared  with  care.  Such  & 
book  should  be  in  the  hands  of  physicians  generally,  who  are  too  oftf  n  not 
aware  of  the  responsibility  which  they  assume  in  accepting  the  charge  of 
surgical  casee. 

(A) 


TESTIMONIALS. 

From  Hon.  John  McLean,  of  the  Supreme  Court  of  the  United  States. 
No  one  who  did  not  unite  both  professions  could  have  written  BO  valuable 
a  book.     I  have  no  knowledge  that  any  one,  under  similar  circumstances,  has 
attempted  to  do  what  Mr.  EL  WELL  has  so  well  performed. 


From  the  Boston  Medical  and  Surgical  Journal,  (DR.  WALTER  CHANNING.) 
FONBLANQUE,  a  distinguished  English  barrister,  and   PARIS,  nn  equally 
distinguished  physician,  united  their  forces  and  professions  in  a  work  on  Medi- 
cal Jurisprudence,  and  the  product  of  the  connection  was  an  excellent  treatise 
on  that  important  subject. 

We  have  just  read  an  American  work  on  Medical  Jurisprudence,  the  lite- 
rary history  of  which  reminds  us  of  the  copartnership  of  PARIS  and  FON- 
BLANQUE. Dr.  ELWELL,  the  author  of  the  volume  before  us,  having  studied 
and  practiced  medicine  for  several  years,  turned  over  a  new  leaf,  and  studied 
and  practiced  law  for  as  long  a  time,  and  now  presents  us  with  the  product  of 
the  two  professions,  united  by  a  Siamese  form  of  attachment,  which  makes  it 
as  easy  to  work  for  and  with  one  as  for  and  with  the  other.  The  design  in 
this  work,  it  will  be  seen,  is  novel,  and  it  is  excellently  well  accomplished. 
If  it  do  not  sustain  the  old  adage,  that  two  of  a  trade  can  never  agrt-e,  it  cer- 
tainly does  prove  that  two  of  the  most  diverse  callings  may  act  in  perfect  har- 
mony, and  for  the  equ^l  benefit  of  both. 

We  heartily  commend  Dr.  ELWELL'S  work  to  our  readers.  It  is  from  one 
who  knows  well  what  his  profession  wants  in  such  a  work;  and  in  our  judg- 
ment he  has  met  and  satisfied  that  demand. 


From  John  Delamater,  M.  D.,  LL.  D. 

It  is  a  book  which  should  be  in  the  library  of  every  physician  and  surgeon. 
Any  member  of  the  profession  who  will  purchase  it,  and  spend  two  months  in 
its  study,  will  be  well  repaid  for  the  cost  and  labor. 


From  Hon.  John  F.  J.  Fithian,  New  York  District  Attorney. 

I  have  had  occasion  to  refer  to  and  cite  in  Court  ELWELL'S  work  upon 
•"Malpractice  and  Medical  Evidence."  In  my  opinion,  it  is  a  most  convenient 
and  reliable  book  of  reference  in  all  cases  of  Medical  Jurisprudence.  The  medi- 
cal and  chemical  writers  have  given  us  voluminous  treatises  upon  their  particu- 
lar branches  of  science,  as  have  also  the  legal  writers,  thus  leaving  us  busi- 
ness men  to  grope  through  the  whole  mass  in  order  to  extract  therefrom  a  few 
practical  and  elementary  rules  and  principles  for  every-day  use.  In  his  treatise 
he  has  saved  us  this  labor,  by  giving  us  compactly  and  succinctly,  in  a,  convenient 
form  for  reference,  with  all  t/ie  recent  authorities,  so  much,  and  no  more,  of  the 
two  systems  of  law  and  medicine  as  we  are  most  frequently  called  upon  to  deal 
with  in  the  practice  of  our  profession. 

From  Prof.  Valentine  Mott,  M.  D.,  LL.  D.,  New  York. 

I  am  sure  it  is  a  work  that  will  be  greeted  at  the  Bar,  and  because  the  most 
useful  that  the  medical  profession  has  ever  had  as  a  refuge  in  difficulties  and 
dangers,  that  profession  will  also  welcome  it. 


From  the  Boston  Law  Journal. 

The  earlier  part  of  the  book  is  occupied  with  malpractice  in  cases  of  ampu- 
tations, &c.,  and  constitutes  a  new  and  valuable  contribution  to  medico-legal 
literature.  The  book  possesses  particular  merit. 

From  Robley  Dungliton,  M.  D.,  Professor  of  the  Institutes  of  Medicine,  &c.,  in  Jefferson 

College,  Philadelphia. 

I  cannot  doubt  that  it  will  prove  a  useful  guide  to  the  solution  of  many  of 
those  intricate  questions  which  present  themselves  so  frequently  to  the  medical 
And  legal  practitioner. 

CB) 


TESTIMONIALS. 

From  a  Review  of  this  work  in  the  New  York  Journal  of  Medicine. 
"  Some  books,"  Bays  Lord  BACON,  "  are  to  be  tasted,  some  to  be  swallowed  • 
some  few  to  be  chewed  and  digested."  Prof.  ELWKLL'S  belongs  most  emphat- 
ically to  the  latter  class,  and  its  frequent  mastication  and  digestion  by  both 
professions  of  both  law  and  medicine  will  be  found  to  afford  them  that  very 
pabulum  for  which  they  have  long  and  anxiously  waited.  Indeed,  considering 
the  very  great  number  of  legal  and  medical  text-books  winch  have  been  put 
forth  in  elucidation  of  almost  every  specialty  which  professional  necessities 
have  created;  and  looking  even  at  those  on  medical  jurisprudence  which  best 
evince  the  syncretism  of  two  great  sciences,  it  is  singular  to  perceive  that  the 
subject  of  malpractice  is  nowhere  discussed.  Even  the  omnivorous  and  ency- 
clopaedic BECK,  who,  with  probe  and  tentacle,  has  explored  every  rill  and  rift, 
every  peak  and  cavern  of  forensic  medicine,  and  has  heterogeneously  incorpo- 
rated everything  that  was  ever  said  or  p  iiited  upon  this  subject  into  his  text, 
overlooks  entirely  the  very  important  and  magistral  topic  of  malpractice.  *  * 
We  cannot  help  saying  that  if  there  be,  among  all  the  chapters  in  this  truly 
valuable  book,  one  which  we  consider  as  a  keystone  of  all  the  rest — and  whose 
honest,  frauk  and  conservative  tone  will  do  more  to  beget  a  true  medico-legal 
union  before  the  Courts,  where  now  we  so  often  have  a  complete  antagonism 
of  the  two  professions — it  is  the  chapter  on  "  The  Position  of  the  Courts  upon 
Insanity."  Indeed,  throughout  all  his  discussions  upon  this  vexed  question. 
Prof.  ELWELL  shows  the  fruit  of  a  large  observation  of  facts,  as  well  as  of 
critical  examination  into  the  legal  and  physical  causes  of  divergence  between 
the  professions  of  law  and  medicine.  And  we  shall  be  much  mistaken  if  the 
dissemination  of  his  logic  does  not  produce  a  radical  change  in  the  minds  of 
many  of  those  whose  chief  delight  it  has  been,  in  season  and  out  of  season,  to 
heap  reproach  upon  the  Courts  for  not  surrendering  at  once  some  of  the  car- 
dinal principles  of  human  government  as  applied  to  rational  and  responsible 
beings.  *  *  *  We  cannot  close  this  brief  and  imperfect  review  of  Pro!'. 
ELWELL'S  book,  throughout  which  we  have  seen  so  much  more  to  praise  and 
admire  than  we  have  dared  give  utterance  to,  without  calling  attention  to  the 
fact  that  the  field  trodden  by  him  is  both  a  new  and  a  rich  one. 


From  E.  Dolafield  Smilh,  author  of  Smith's  New  York  Reports. 
While  the  work  will  be  regarded  as  a  valuable  contribution  to  Medical 
Jurisprudence  ..in  general,  the  portions  devoted  to  the  subject  of  malpractice 
must  prove  of  peculiar  value.  They  will  effectively  aid  in  a  just  determination 
of  a  class  of  cases  too  often  unrighteously  prosecuted,  and  which  involve  either 
the  safety  of  the  community  or  the  sanctity  of  individual  professional  character. 


From  Prof.   Geo.  B.  Wood,   M.  D.,  Jefferson  Medical  School,  Philadelphia,  and  author  of 
Wood's  "  Practice  of  Medicine  "  and  the  "United  States  Dispensatory." 

I  have  1  een  much  pleased  with  the  scope  of  the  work,  and,  in  the  parts 
which  I  have  examined,  have  found  nothing  of  which  I  could  not  approve. 


From  the  Cincinnati  Lancet  and  Observer. 

The  author  has  appreciated  the  difficulties  which  both  physicians  and  law- 
yers labor  under  in  suits  of  malpractice.  His  book  is  an  exceedingly  valuable 
one  to  both  professions.  While  he  seems  to  be  a  fine  jurist,  he  at  the  same 
time  gives  evidence  of  having  mastered  the  profession  of  medicine.  The 
chapters  on  "Medical  Evidence"  are  especially  worthy  of  notice.  The  author 
is  a  clear  writer,  and  we  recommend  the  book  to  all  our  readers. 


From  the  London  Medical  and  Chirurgical  Review. 

Dr.  ELWELL  deserves  the  thanks  of  the  medical  and  legal  professions  for 
the  very  able  work  he  has  presented  to  them.  It  is  a  most  learned  work,  and 
worthily  upholds  the  high  character  which  already  distinguishes  trans-At  lantic 
jurisprudential  literature.  Dr.  ELWELL  offers  a  masterly  sketch  of  the  princi- 
ples which  should  guide  the  medical  witness  in  the  discharge  of  his  duties. 

(c) 


TESTIMONIALS. 

From  William  Curtis  Noyes,  New  York. 

I  have  found  it  accurate,  valuable  and  learned.  It  possesses  one  advantage 
over  most  other  works  of  a  similar  kind,  and  that  is,  it  is  written  by  a  lawyer 
as  well  as  a  physician — a  thing,  in  my  judgment,  indispensable  in  a  treatise  on 
this  subject.  I  regard  this  book  as  quite  essential  to  the  library  of  every  prac- 
ticing physician,  and  trust  it  will  command  the  attention  its  merits  deserve. 


Prom  Judge  Bellamy  Storer,  LL.  D.,  of  Cincinnati. 

I  am  sincerely  thankful  for  this  very  excellent  work  on  that  branch  of 
medical  jurisprudence  which  is  really  practical.  I  have  looked  over  the 
volume  pretty  carefully,  and  I  am  convinced  and  satisfied  that  the  author  has 
done  a  service  for  which  the  public  should  be  grateful. 


From  the  New  York  Medical  Press. 

We  regard  the  work  as  bridging  a  chasm  hitherto  existing  (for  none  of  the 
works  on  Medical  Jurisprudence  have  been  at  all  sufficiently  practical)  in  the 
medical  and  legal  professions,  particularly  in  the  former.  We  recommend  it 
for  its  merits,  which  we  consider  paramount,  to  our  medical  brethren. 


From  Prof.  Ordronaux,  of  the  Law  Department  of  Columbia  College,  New  York. 
Where  everything  is  so  well  discussed,  substantiated  and  fortified  by  a 
judicious  selection  of  leading  authorities,  it  is  unnecessary  for  me  to  point  out, 
or  indicate  by  name,  any  particular  chapter  as  pre-eminently  meritorious.  I 
am  convinced,  however,  that  the  one  on  "The  Position  of  the  Courts  in 
Insanity  "  is  destined  to  exercise  a  most  beneficial  influence  on  the  profession 
of  both  Law  and  Medicine,  by  exhibiting  to  each  the  true  position  which  the 
interests  of  justice  as  well  of  humanity  require  at  their  hands. 


From  the  American  Medical  Gazette,  edited  by  D.  MEREDITH  REESE.  A.  M.,  M.  D.,  LL.  D., 

Professor  of  the  Institutes  of  Surgery  and  Medical  Jurisprudence. 

This  is  a  new,  timely  and  independent  work,  written  by  a  gentleman 
combining  in  himself  the  professions  of  both  law  and  medicine,  having  had 
practical  experience  in  both.  The  learning  and  ability  of  the  author  have 
enabled  him  to  produce  a  work  which  we  should  suppose  would  henceforth 
be  indispensable  to  every  law  library,  and  should  be  found  in  every  medical 
library,  and  is  hence  appropriately  dedicated  to  the  young  men  of  the  United 
States  engaged  in  the  study  or  practice  of  medicine  or  law.  It  bears  the  motto 
of  the  distinguished  Philadelphia  counselor,  DAVID  PAUL  BROWN,  Esq.,  viz.: 

"  A.  doctor  who  knows  nothing  of  law,  and  a  lawver  who  knows  nothing  of  medicine,  are 
deficient  in  essential  requisites  of  their  respective  professions." 

We  have  looked  over  this  book  with  much  interest,  and  cordially  commend 
it  to  our  profession,  as  worth  all  the  books  extant  on  Medical  Jurisprudence  ; 
and  on  the  subject  of  Malpractice,  for  which  prosecutions  have  been  instituted 
against  distinguished  surgeons  in  various  parts  of  the  country,  we  have  seen 
nothing  worthy  to  be  compared  with  it ;  for,  in  the  most  of  analogous  works, 
this  important  topic  has  been  ignored.  Dr.  ELWELL  has  very  properly  availed 
himself  of  the  masterly  papers  of  Prof.  HAMILTON,  of  Buffalo,  in  the  "  Trans- 
actions of  the  American  Medical  Association,"  and  has  discussed  the  whole 
subji  ct  from  a  legal  stand-point. 

All  the  important  questions  appertaining  to  Medical  Jurisprudence  are  here 
treated  at  sufficient  length,  and  without  the  speculations  or  irrelevant  topics 
which  disfigure  the  works  on  this  subject.  And  now  that  the  great)  work  of 
the  Drs.  BKCK  has  been  spoiled  in  remodeling,  by  the  monographs  of  half  a. 
score  of  officious  intermeddlers — who  have  perverted  what  the  authors  wrote, 
and  substituted  their  own  commentaries  on  special  departments,  of  which 
several  of  them  betray  an  ignorance  and  presumption  disreputable  to  the 
profession,  and  positively  deteriorating  to  the  work — we  look  upon  the  treatise 
of  Dr.  ELWELL  as  the  best  in  our  language  on  the  subject,  and  doubt  not  it 
will  become  the  standard  authority,  not  only  in  the  Courts  of  law,  but  in  our 
medical  schools  and  colleges. 


MEDICO-LEGAL  TREATISE 


MALPEACTICE 

MEDICAL   EVIDENCE, 

AND 

INSANITY, 

COMPRISING   THE 

—7 

ELEMENTS  OF  MEDICAL  JURISPRUDENCE; 


JOHN  J..ELWELL,  M.  D., 

MEMBER  OF  THE  CLEVELAND  BAR,   ONE   OF   THE   EDITORS   OF  NEW  EDITION  OF  BOUTIEB'8  LAW 

DICTIONARY,   PROFESSOR  IN  OHIO   STATE  AND  UNION  LAW  COLLEGE  AND 

WESTERN  RESERVE   MEDICAL  COLLEGE,   ETC.,    ETC. 


A  doctor  who  knows  nothing  of  law,  and  a  lawyer  who  knows  nothing  of  medicine,  are  deficient  in  essential 
requisites  of  their  respective  professions.— DAVID  PAUL  BBOWX. 


FOURTH  EDITION-REVISED  AND  ENLARGED. 


NEW    YORK: 

BAKEE,    V  OCR  II  IS    &    CO.,    PUBLISHERS, 

LAW    BOOKSELLEKS    AND    IMPORTERS, 
66  NASSAU  STREET. 

1881. 


(88 


Entered  according  to  Act  of  Congress,  in  the  year  1859,  by 

JOHN   J.   ELWELL, 
In  the  Clerk's  Office  of  the  District  Court  of  the  Northern  District  of  Ohio. 


Stereotyped  l>y  Hills,  O'Driscoll  &  Co.,  Printed  by  Fairbanks,  Benedict  &  Co. 

141  Main  St.,  Cincinnati.  Cleveland. 


PREFACE  TO  FOURTH  EDITION. 


The  first  edition  of  this  work,  published  twenty  years  ago,  was 
at  once  received  by  the  two  professions  for  which  it  was  prepared, 
with  a  generous  approval  that  surprised  the  author,  no  less  than 
the  steady  confidence  which  has  continued  from  its  first  appearance 
to  the  present  call  for  a  fourth  edition. 

The  elementary  matter  of  this  edition  is  substantially  the  same 
as  the  last ;  it  not  being  an  easy  thing  to  unhoop  a  cask  and  insert 
new  staves,  nor  will  a  wise  cooper  try  to  do  so,  while  the  old  ones 
hang  well  together.  The  original  text  having  successfully  run  the 
gantlet  of  reviewer,  lawyer,  doctor,  and  judge  upon  the  bench,  is 
entitled  to  stand  approved. 

Displacing  some  matter,  every  important  decision  of  the  courts, 
since  the  last  edition,  bearing  upon  the  subject,  it  is  thought  has 
been  added.  Other  additions  and  amendments  are  mainly  in  notes. 

A  common  defect  in  professional  books,  is  want  of  compactness 
and  condensation.  As  in  former  editions  of  this  work,  so  in  this, 
the  knife  has  been  relentlessly  applied  to  all  surplus  brush,  that  sym- 
etry  and  healthy  fruit  bearing  may  be  the  result.  The  book  will 
be  found,  it  is  believed,  to  embrace  results  rather  than  theory  or 
undigested  material.  Enough  of  this  can  be  found  elsewhere.  De- 
cisions of  inferior  courts,  and  speculations  of  medical  writers  find 
no  place  in  these  pages. 

The  professions  of  Law  and  Medicine  are  more  heavily  loaded 
and  pressed  with  practical  work  that  must  be  attended  to  at  a 
moments  notice — that  will  tolerate  no  delay,  than  any  other  per- 
haps ;  and  no  other  professions  are  so  overwhelmed  with  new  books, 
to  read  which  is  out  of  the  question.  Life  is  too  short. 

The  practitioner  in  these  professions,  must  see  to  it,  that  he 
applies  promptly,  what  has  been  settled  or  he  makes  himself  liable 
the  moment  he  fails  to  find  or  steps  over  the  established  line  of  pre- 
cedent either  in  law  or  medicine — especially  the  latter.  Student  life 
is  one  thing,  the  application  of  settled  facts  in  practical  life  quite 
another.  The  medical  man  must  act  promptly  and  correctly  on  cer- 
tain sure  data,  in  safety  to  his  patient  and  to  himself,  if  such  data 
exist. 

J.  J.  ELWELL. 
CLEVELAND,   APRIL,  1881. 


PREFACE  TO  THIRD  EDITION. 


Two  large  editions  having  been  exhausted  since  this  work  was 
first  published,  and  another  demanded,  the  author  has  thoroughly 
revised,  corrected  and  enlarged  the  present  edition.  After  having 
corresponded  and  conferred  with  many  eminent  legal  and  medical 
men,  and  carefully  read  and  considered  the  reviews  and  criticisms 
of  the  work  in  the  law  and  medical  journals  of  this  country  and 
of  England,  he  is  glad  to  find  so  little  to  change  or  correct  in 
the  original  elementary  matter  of  the  text.  Under  the  light  of 
journalistic  strictures,  as  well  as  from  proper  reflection  and  the 
study  of  all  later  works  in  law  and  medicine  bearing  upon  the 
topics  discussed  here,  the  author  has  endeavored  to  make  this 
edition  as  nearly  perfect  as  possible.  All  defects,  pointed  out 

by  others  or  discovered  by  the  author,  it  is  believed  have  been 

t 

removed. 

The  Notes  to  the  respective  Chapters  (inserted  in  the  Appendix) 
will  be  found  full  and  correct  —  embodying  all  the  latest  decisions 
of  American  and  English  Courts. 

The  anxiety  and  sense  of  responsibility  felt  when  this  work  was 
first  sent  forth  has  been  relieved  by  the  very  favorable  reception  it 
has  universally  met  in  the  legal  and  medical  professions — for  it 
may  not  be  improper  to  say  that  the  book  has  achieved  a  respect- 
able success;  and  it  is  with  gratification  and  satisfaction  that  this 
edition  is  given  to  the  professional  public. 

J.    J.    ELWELL. 

CLEVELAND,  January  1,  1871. 


THE  active  practice  of  Medicine  and  Surgery  for  several  years 
having  taught  me  something  as  to  the  magnitude  of  the  duties  and 
difficulties,  the  wants  and  liabilities  of  the  Medical  profession ; 
and  a  corresponding  length  of  time  devoted  to  the  study  and  prac- 
tice of  Law,  having  deeply  impressed  me  with  the  importance  of 
the  two  professions,  relatively  as  well  as  independently  considered, 
developing  also  the  obvious  fact,  that  legal  men,  and  legal  works, 
devote  too  little  attention  to  Medico-legal  subjects  ; — I  have  thought 
that  in  no  way  could  I  better  serve  the  interests  of  the  two  great 
professions  to  which  I  have  devoted  my  life,  and  promote  the  great 
ends  of  Science  and  Justice,  than  by  endeavoring  to  embody  in  a  con- 
cise, complete,  and  comprehensive  work,  all  the  settled  principles, 
and  known  authorities,  as  well  as  the  result  of  my  own  thought  and 
experience,  upon  the  subject  of  MALPRACTICE  and  MEDICAL  EVIDENCE. 

While  a  member  of  the  Medical  profession,  and  in  the  practice 
of  Surgery  ,  and  also  during  my  subsequent  practice  at  the  Bar , 
my  attention  has  been  repeatedly  and  imperatively  called  to  the 
subject  of  Malpractice,  as  well  as  that  of  Medical  Evidence.  In 
looking  around  for  light  upon  these  important  questions,  I  was 
astonished  and  disappointed  to  find  nothing  upon  the  subject  of 
Malpractice  in  our  works  upon  Medical  Jurisprudence,  where  I 
thought  it  properly  belonged ;  nor  did  the  works  on  the  practice  cf 
Surgery  afford  the  necessary  information.  Except  the  able  reports 
of  Prof.  Hamilton  upon  Deformities  after  Fractures,  made  to  the 
American  Medical  Association,  and  where  now  and  then  a  case  has 
found  its  way  into  the  medical  periodicals,  this  subject  is  scarcely 
alluded  to  in  the  whole  range  of  medical  literature. 

I  have  been  equally  surprised  to  find  the  same  deficiency  exist- 
ing in  the  elementary  works  of  the  Legal  profession ;  although  it  is 

(v) 


VI  PREFACE. 

well  known  that  the  attorney  experiences  the  greatest  difficulty, 
doubt,  and  perplexity,  in  preparing  cases  involving  the  question  of 
Malpractice,  and  in  the  examination  of  medical  witnesses.  The 
difficulties  which  embarrass  the  lawyer  in  this  particular  field  of 
legal  investigation,  arise  from  the  fact  that  the  medical  aspect  of 
these  questions, — of  Malpractice  in  particular, — is  to  him  buried  in 
the  technically  intricate  labyrinths  of  another  science,  while  his  own 
authorities  lie  scattered  in  undigested  confusion  throughout  the  vast 
range  of  law  Reports. 

On  viewing  the  field,  therefore,  from  these  two  points, — the 
Medical  and  the  Legal, — and  being  fully  aware  of  the  complicated 
difficulties  and  perplexities  surrounding  the  whole  subject,  and  deeply 
impressed  with  the  magnitude  of  the  undertaking,  I  felt  that  valu- 
able service  might  be  rendered  by  me  to  the  two  professions,  by 
attempting  the  systematic  arrangement  of  a  medico-legal  treatise ; 
thus  supplying,  if  possible,  a  general  want.  A  somewhat  extensive 
correspondence  with  leading  physicians,  surgeons  and  lawyers,  in 
this  and  other  States,  has  encouraged  and  confirmed  the  idea, — 
they  uniformly  agreeing  with  me  as  to  the  necessity  of  such  a  work. 

It  is  now  submitted,  such  as  it  is,  with  some  confidence,  to  the 
hands  and  judgment  of  the  members  of  the  two*  professions  for 
whom  it  is  designed. 

"Whatever  the  value  of  the  work  may  be,  it  has  been  the  result 
of  much  thought,  and  long  labor ;  and  I  claim  for  it  complete  origin- 
ality in  the  general  plan  and  treatment  of  the  subject,  whether 
good  or  bad. 

It  is  my  earnest  desire  that  its  mission  may  be  beneficial,  by  re- 
lieving, to  some  extent,  the  labors  of  the  attorney,  while  it  sets 
forth  and  maintains  the  rights  of  the  medical  and  surgical  prac- 
titioner,— not  shielding  the  culpable  and  guilty, — and  at  the  same 
time  bringing  the  two  professions  into  closer  union,  producing 
greater  harmony,  sympathy  and  usefulness. 

J.  J.  ELWELL. 
CLEVELAND,  December  1,  1859. 


MALPRACTICE  AND  MEDICAL  EVIDENCE. 


INTRODUCTION. 

THE  GENERAL  PLAN   AND  SCOPE  OF   THE   WORK. 

FREQUENT,  important,  and  troublesome  as  are  the  cases  of 
alleged  MALPRACTICE  by  medical  men,  there  is  yet  no  work  treat- 
ing upon  the  subject,  and  medical  and  legal  inquirers  after  inform- 
ation upon  the  question,  are  obliged  to  seek  it  in  the  vast  range 
of  elementary  works  upon  Medicine  and  Law,  and  in  the  unlimited 
field  of  Reports,  constituting  the  larger  part  of  every  lawyer's 
library. 

The  author  trusts  that  in  the  first  part  of  this  work  he  has 
supplied  this  desideratum, — at  least,  to  a  considerable  extent. 

Happily,  Criminal  Malpractice  is  but  rarely  met  with  in  courts 
of  justice;  while  Civil  suits  for  damages  are  of  a  frequency, 
alarming,  both  to  the  profession  of  medicine  and  to  the  public. 
Suits  of  this  class,  in  some  parts  of  the  country,  seem  to  be  on 
the  increase.  So  common  an  occurrence  is  it  for  the  surgical 
treatment  of  the  oldest  and  best  physicians  and  surgeons,  in 
general  practice,  to  be  called  in  question  and  overhauled  in 
courts  of  justice,  that  there  is  at  this  time  a  general  feeling  of 
uneasiness,  and  a  conviction  that  the  business  is  at  best  very 
dangerous,  so  far  as  property  and  reputation  are  concerned.  The 
result  is,  that  some  of  the  most  thoroughly  qualified  medical  men, 
utterly  refuse  to  attend  surgical  cases, — confining  their  practice  to 

(  7  ^ 


8  INTRODUCTION. 

that  of  medicine  alone.  They  say  the  compensation  usually 
attending  the  practice  of  surgery  does  not  warrant  a  man  of  prop- 
erty in  exposing  himself  to  the  probability  of  having,  sooner  or 
later,  to  defend  his  treatment  in  an  action  for  Malpractice.  Vic- 
tory in  these  cases  is  in  one  sense,  defeat,  because  the  disgrace, 
vexation,  and  cost,  are  generally  ruinous. 

So  great  has  the  evil  of  this  indiscriminate  attack  upon  the 
members  of  the  medical  profession  become,  that  some  of  the 
State  Medical  Associations  have  felt  called  upon  to  take  the 
matter  into  consideration,  and  act  upon  it  as  one  of  grave 
importance. 

In  1856,  the  committee  on  surgery,  through  their  able  chair- 
man, Dr.  J.  W.  Hamilton,  reported  to  the  Ohio  State  Medical 
Association,  that,  in  their  opinion,  the  subject  of  Malpractice  was 
at  that  time  of  more  importance  to  the  profession  than  any  other 
connected  with  surgery.  They  say :  "  there  is  a  standing  and 
apparently  cumulative  evil, — an  evil  bearing  with  the  weight  of 
an  incubus  upon  the  profession.  It  is  the  frequency  of  difficul- 
ties on  account  of  alleged  MALPRACTICE  in  the  treatment  of  frac- 
tures. The  cases  reported,  with  several  others  not  included  in 
the  report,  were  forced  upon  the  attention  of  a  single  member  of 
the  committee  during  the  past  year,  by  parties  to  the  difficulty 
who  sought  testimony  or  sympathy.  During  one  week,  in  as 
many  different  counties,  four  cases  were  tried." 

These  statements  are  illustrated  by  eight  or  ten  Malpractice 
cases,  in  all  of  which  the  surgeon  had  the  alternative  presented  to 
him  of  compromising,  not  only  his  own  reputation,  but  the  honor 
of  his  profession,  by  paying  damages,  or  contesting  the  question 
in  a  court  of  justice,  where  a  verdict  in  his  favor  would  be  attend- 
ed with  a  loss  of  business,  and  a  heavy  bill  of  expense.  Some 
took  one  course,  and  some  the  other ;  all  suffering  more  or  less 
in  business  and  property.  The  parties  sued  were  all  believed  to 
be  good  and  well-educated  professional  men.  In  conclusion  the 
report  says :  "  What  course  shall  the  profession  take  in  regard 
to  the  matter  ?  Severe  implications  are  being  meted  out  to  our 


,  GENERAL   PLAN    AND    SCOPE   OF   THE    WORK.  9 

professional  brethren  on  account  of  imperfections,  resident  not  in 
themselves,  but  in  their  art."1 

If  it  is  true  that  a  certain  class  of  citizens, — a  particular  pro- 
fession,— is  thus  situated  and  exposed  without  fault  on  their  part, 
what  is  the  remedy  for  the  evil  ?  Can  not  the  negligent,  careless 
and  ignorant  be  punished  without  involving  the  careful,  skillful 
and  innocent?  These  questions  are  important. 

It  is  suggested  in  the  report  already  referred  to,  that  the 
profession  of  medicine  protect  itself  thus :  "  Let  it  be  distinctly 
understood  that  those  individuals  immediately  implicated  are 
entitled  to  the  sympathy  and  assistance  of  as  many  of  their 
professional  brethren  as  may  be  necessary  to  sustain  them. 
And  where  it  is  possible  to  avoid  it,  let  not  a  member  of  the 
profession  be  found  in  the  ranks  of  the  prosecution.  It  is 
believed  that  in  this  way  very  much  may  be  done  to  diminish 
the  frequency  of  the  occurrences,  and  thus  alford  protection  to 
individuals  in  the  profession,  as  well  as  promote  its  dignity  and 
usefulness." 

This  plan  may  be  found  impracticable ;  indeed  it  always  has 
proved  so.  Professional  sympathy  will  not  remedy  the  evil. 

The  only  effectual  and  permanent  mode,  it  is  believed,  by 
which  the  evil  can  be  reached,  remedied,  and  guarded  against, 
is,  by  elevating  the  standard  of  Medico-legal  knowledge  in  the 
professions  of  Law  and  Medicine.  It  is  not  to  be  denied  that 
members  of  the  legal  profession,  with  few  exceptions,  are  im- 
perfectly informed  upon  medical  questions  connected  with  law, 
though  they  may  be  well  educated  in  law  generally,  and  well 
informed  on  every  other  subject. 

The  science  of  law  and  its  legitimate  details  are  so  boundless, 
lawyers  seem  to  have  no  heart  or  time  to  look  closely  and  criti- 
cally into  another,  sister  science,  equally  extensive  and  difficult 
with  their  own.  The  reluctance  and  failure  on  the  part  of  the 

1  Transactions  of  the  Eleventh  Annual  Meeting  of  the  Ohio  State  Medical 
Society,  1856,  p.  53. 


10  INTRODUCTION. 

members  of  the  Bar  to  study  Medico-legal  subjects,  arises,  in 
part,  if  not  principally,  from  the  bad  arrangement,  and  general 
character  of  the  works  upon  Medical  Jurisprudence,  which  pre- 
tend to  treat  upon  those  matters.  The  subject  of  Malpractice 
being  altogether  ignored,  the  attorney  is  at  once  startled,  if  no* 
disgusted,  at  their  theoretical  and  formidably  medical  and  chem 
ical  character ;  except  which,  he  thinks  he  sees  but  little. 

The  work  written  by  Mr.  Chitty,  who  was  originally  educated 
for  the  medical  profession,  is  really  an  elaborate  work  on  Anatomy. 
Physiology,  Pathology,  the  Practice  of  Medicine,  and  Surgery. 
There  is  but  little  Medical  Jurisprudence  in  it,  excepting  the 
name,  and  the  study  of  it  is  equivalent  to  the  study  of  medicine 
in  all  its  departments. 

Dr.  Beck's  great  work,  consisting  of  two  ponderous  volumes, 
is  a  vast  store-house  of  undigested  facts,  collected  during  a  life- 
time by  its  learned  author ;  many  practical  and  useful,  and  many 
valueless.  It  is  a  great  compilation  from  every  quarter;  em- 
bodying the  history  of  Medical  Jurisprudence;  treating  upon 
Chemistry,  the  Practice  of  Medicine,  etc.  As  a  work  of  refer- 
ence it  is  of  much  value ;  yet  so  elaborate  and  so  endless  are  its 
details,  that  the  practical  is  often  covered  up  with  the  useless  and 
obsolete.  Almost  every  case  that  has  ever  been  published,  in 
any  country,  in  book  or  newspaper,  important  or  unimportant, 
here  finds  a  resting-place.  Often  the  circumstances,  authority 
and  date  of  the  case  are  not  given,  leaving  the  whole  in  confusion 
and  doubt. 

These  old  and  isolated  cases  are  constantly  making  trouble  in 
courts.  The  attention  of  the  medical  witness  is  called  to  them 
as  contradicting  what  he  avers  to  be  the  present  state  of  the 
question ;  and  resting,  as  they  do,  upon  the  authority  of  Beck, 
much  more  consequence  is  given  to  them  than  they  deserve.  This 
kind  of  matter  should  not  be  embodied  in  works  on  Medical  Juris- 
prudence,— it  only  tends  to  embarrass  both  witness  and  counsel. 

Many  of  the  later  works  upon  the  subject  of  Medical  Juris- 
prudence are  obnoxious  to  the  same  objection,  possibly,  to  a  less 


-  GENERAL   PLAN   AND    SCOPE   OF   THE   WORK.  11 

degree  than  the  leading  ones  named.  Thus,  the  attorney  i& 
compelled,  by  the  manner  in  which  the  subject  is  treated  in  these 
works,  to  pursue  an  unnecessarily  extensive  course  of  medical 
reading  and  study,  in  order  to  become  at  all  familiar  with  the 
points  involved  in  Medico-legal  questions. 

Could  the  subject  be  presented  in  a  clear  and  brief  manner,  so 
that  the  medical  element  entering  into  the  case,  and  that  alone, 
should  appear, — enabling  the  lawyer  to  fully  comprehend  the 
points  and  connection,  without  throwing  upon  him  the  laborious 
and  general  study  of  the  medical  science, — it  would  go  a  great 
way  toward  encouraging  the  study  of  those  questions  by  the 
members  of  the  Bar ;  as  they  have  not  the  time  for  a  general 
investigation  of  all  the  subjects  connected  with  medicine,  unless 
they  neglect  something  of  equal  importance. 

On  the  other  hand,  the  medical  man  has  no  possible  mode  of 
determining  the  extent  of  his  responsibilities  and  liabilities,  as 
such,  in  a  case  of  alleged  Malpractice,  without  a  thorough  study 
of  the  principles  of  law,  as  well  as  a  laborious  examination  of 
libraries  of  Reports.  He  derives  no  help  whatever  from  the 
works  on  Medical  Jurisprudence.  He  may  read  them  all,  and 
he  is  still  in  the  dark  as  to  the  rules  of  law  that  bear  upon  him, 
and  by  which  he  is  to  be  judged ;  and  from  his  knowledge  of 
the  usual  results  attending  such  cases,  he  is  at  once  discouraged, 
ready  to  compromise  in  any  way,  and  then,  perhaps,  leave  the 
profession :  when,  if  he  could  turn  with  confidence  to  the  correct 
and  highly  humane  laws  applicable  to  such  cases,  if  properly 
administered, — ascertaining  at  once  where  he  stands  and  what 
are  his  chances, — he  would  take  courage  and  feel  compara- 
tively safe. 

The  author  has  attempted  in  this  volume  to  present  the 
Medico-legal  questions  likely  to  engage  most  frequently  the 
attention  of  attorneys  and  medical  men,  in  a  circumscribed  and 
compact  form ;  and  to  reduce,  if  possible,  the  voluminous  literature 
of  the  subject, — scattered  throughout  law  and  medicine, — to  a 
practical  system : — with  what  success,  others  are  the  judges. 


12  INTRODUCTION. 

Proceeding  upon  the  idea  that  much  more  matter  of  a  strictly 
theoretical  and  medical  character,  is  connected  with  the  discus- 
sion of  Medico-legal  subjects,  in  most  works  upon  Medical  Juris- 
prudence, than  is  necessary ;  tending  as  it  does,  to  repel,  rather 
than  enlighten  the  legal  inquirer,  and  rendering  his  search  use- 
lessly laborious ;  the  author  has  endeavored  to  strip  the  subject 
of  all  such  profitless  details  and  discussions,  leaving  the  consider- 
ation of  speculative  themes  to  other  works  and  writers. 

It  is  also  the  aim  of  the  present  work  to  furnish  to  the  medi- 
cal man  that  necessary  information  respecting  his  legal  responsi- 
bility as  a  practitioner  and  witness,  which  he  has  been  hitherto 
unable  to  attain  except  by  the  general  study  of  law.  In  short, 
the  author  believes  it  possible  for  both  of  these  classes  to  arrive 
at  the  desired  point,  and  command  the  necessary  information,  by 
a  much  shorter  road  than  that  usually  taken,  and  at  a  much  less 
expenditure  of  time. 

In  the  opening  chapter  of  the  work,  the  author  has  attempted 
to  lay  down  the  general  principles  of  law  applicable  to  medical 
responsibilities,  as  held  by  the  courts  of  Eng'and  and  this  country, 
with  full  references  to  the  cases  where  medical  men  have  been 
tried  for  alleged  Malpractice,  as  well  as  to  other  cases  involving 
the  same  principles;  then,  in  a  series  of  chapters,  the  difficulties 
peculiar  to  the  medical  profession, — its  possibilities  and  its  im- 
possibilities,— what  the  medical  practitioner  can  do  and  what  he 
can  not, — are  set  forth  as  concisely  as  may  be,  with  references. 
The  subjects  of  Amputations,  Fractures  and  Dislocations, — out 
of  the  treatment  of  which  grow  the  great  majority  of  suits  for 
Malpractice, — are  taken  up,  and  an  exhibit  of  the  present  state 
of  the  science  in  regard  to  the  Surgery  of  these  cases  presented ; 
that  just  what  should  be  rightfully  expected  and  required  of  the 
surgeon,  may  appear  as  far  as  possible,  and  what  should  excuse 
an  imperfect  result  in  his  treatment.  These  several  subjects  are 
followed  by  the  leading  adjudicated  cases  upon  the  questions,  in 
English  and  American  courts. 

A  digest  of  Prof.  Frank  II.  Hamilton's  able  and  valuable  Report 


tSENERAL   PLAN   AND   SCOPE   OF   THE    WORK.  13 

on  Deformities  after  Fractures,  and  a  chapter  on  the  responsibilities 
of  Druggists,  with  the  leading  cases  where  they  have  been  sued, 
closes  the  part  of  the  work  devoted  to  Civil  Malpractice. 

CRIMINAL  MALPRACTICE,  including  the  subject  of  Abortion,  is 
next  presented,  together  with  the  leading  adjudicated  cases. 

Part  Second,  is  devoted  to  the  consideration  of  the  leading 
points  and  subjects  involved  in  MEDICAL  EVIDENCE. 

The  medical  man  should  understand  clearly  his  rights  and 
duties  while  discharging  the  obligations  of  a  witness,  if  he  would 
acquit  himself  creditably ;  this  knowledge  he  can  only  gain  by 
giving  some  attention  to  the  general  rules  of  evidence  by  which 
he  is  governed  and  guided  while  in  court;  hence,  in  several 
chapters  the  subjects  of  Evidence  in  General,  Circumstantial  Evi- 
dence, the  Testimony  of  Experts,  Privileged  Witnesses  and 
Communications,  and  Medical  Books  as  Evidence,  are  briefly 
considered.  If  the  medical  witness  would  devote  as  much  time 
and  thought  to  these  several  departments  of  evidence,  as  the 
attorney  gives  to  the  consideration  of  the  medical  questions  aris- 
ing where  he  is  interested,  there  would  at  once  be  a  more 
perfect  understanding  between  the  witness  and  lawyer,  and  a 
material  cause  of  irritation  and  misunderstanding  would  be  re- 
moved. Is  not  this  exceedingly  desirable  ? 

It  is  possible  the  importance  of  the  medical  witness's  position, 
to  himself  and  to  his  profession,  and  as  the  vindicator  of  justice, 
has  been  over-estimated  in  this  treatise.  It  is  thought,  however,, 
that  at  this  point,  the  members  of  the  medical  profession  should 
make  a  firm  stand,  and  by  their  knowledge,  candor,  and  firmness, 
vindicate  their  profession  before  the  world.  A  distinguished 
lawyer  has  said :  "  The  condition  of  a  scientific  witness  must  be 
most  awful,  who  gives  any  other  opinion  than  that  which  is  in- 
fallible. Opinions  in  cases  of  poisons  we  have  always  considered 
highly  questionable,  and  requiring  the  utmost  possible  care,  and 
especially  in  the  application  of  new  systems,  that  even  have  not 
undergone  the  test  of  time  and  experience.  The  jurymen  shelter 
themselves  under  the  opinion  of  the  doctor,  ignorant  of  their  own. 


14  INTRODUCTION. 

privileges  and  duties,  and  not  observant  of  the  defendant's  rights; 
and  the  doctor,  thus  being  superior  in  matters  of  science,  forgets 
his  limits,  and  often  spreads  ruin  around."1 

In  this  treatise  are  discussed  only  those  Medico-legal  subjects, 
which  are  constantly  engaging  the  attention  of  courts,  and  the 
medical  witness ;  these,  it  is  believed,  are  treated  thoroughly. 

The  great  and  difficult  question  of  INSANITY,  which  is  almost 
entirely  in  the  hands  of  the  medical  witness,  is  examined  at  con- 
siderable length,  and  the  leading  adjudicated  cases  appended. 
Also,  the  subject  of  Poisoning, — by  arsenic  and  strychnia  in  par- 
ticular,— is  treated,  with  the  leading  cases  given.  Cases  of 
criminal  poisoning  by  arsenic  and  strychnia  are  more  frequently 
before  the  courts  than  all  others ;  these,  therefore,  have  been  fully 
considered  in  their  Medico-legal  bearings. 

Infanticide,  Wounds,  Rape,  and  Coroner's  Inquests,  close  up 
the  subjects  treated  in  this  work. 

Throughout,  the  author  has  intended  to  leave  abstract  ques- 
tions of  Science,  Anatomy,  Physiology,  Therapeutics,  Chemistry, 
and  the  like,  to  those  able  writers  who  have  made  them  special- 
ties, and  whose  works  are  in  the  libraries  of  every  medical  man. 
To  these,  the  attorney  can  have  access  should  he  wish  to  pursue 
any  particular  point,  or  branch  of  study,  into  its  minute  details. 
It  would  be  folly,  in  a  work  of  this  character,  to  attempt  to  an- 
ticipate him  here, — indeed,  this  is  the  objection  to  many  works 
on  Medical  Jurisprudence.  To  the  physician  or  surgeon,  it  would 
be  useless,  as  he  has  the  discussions  in  full  in  his  elementary 
works. 

1  David  Paul  Brown,  2  Forum,  236. 

NOTE. — Dr.  Sanger,  of  Maine,  has  collected  70  cases  of  malpractice,  and  53 
threats.  Damages  sued  for  were  from  $1,000  to  $25,000;  6  parties  compromise 
for  from  $100  to  $300 ;  9  were  mulcted  in  damages  from  $103  to  $2,000.  Out 
of  the  70  plaintiffs  only  7  were  able  to  pay  the  costs  ;  1  in  8  got  verdicts  for 
damages.  Total  paid  in  verdicts  was  about  $6,300.  The  litigation  was  long  and 
•expensive. 


CONTENTS  OF  CHAPTERS 



CHAPTER    I.  ^.« 

General  Principles  of  Law  applicable  to  Medical  Men 19 

CHAPTER    II. 

The  Inherent  Elementary  Difficulties  of  Medicine  and  Surgery 36 

CHAPTER    III. 

What  definite  knowledge  is  possible  and  essential  for  the  Surgeon, 48 

CHAPTER    IV. 
Malpractice  from  Amputation, 55 

CHAPTER    V. 

Malpractice  in  Fractures  and  Dislocations, 75 

CHAPTER    VI. 
A  Digest  of  Professor  F.  H.  Hamilton's  Reports  of  Cases  of  Deformities  after 

Fractures, 86 

CHAPTER   VII. 
Malpractice  in  Dislocation, 105 

CHAPTER   VIII. 

English  and  American  Adjudicated  Cases, 110 

CHAPTER    IX. 

American  Adjudicated  Cases,  continued 118 

CHAPTER    X. 

Alleged  Malpractice  in  Ophthalmic  Medicine  and  Surgery, 145 

CHAPTER   XI. 

Malpractice  in  Dressing  Incised  Wounds — Depositions  of  Professors  Hamil- 
ton and  Flint,  of  Buffalo 163 

CHAPTER    XII. 
Druggists — Their  Responsibilities — Leading  Adjudicated  Cases, 169 

CHAPTER   XIII. 
Criminal  Malpractice — English  Adjudicated  Cases, .    198 

CHAPTER    XIV. 

Criminal  Malpractice — English  Adjudicated  Cases,  continued, 208 

CHAPTER    XV. 
.Criminal  Malpractice — American  Adjudicated  Cases,  etc., 232 

CHAPTER    XVI. 
Abortion — Fceticide, 243 

CHAPTER    XVII. 

Evidence  in  General — Circumstantial  Evidence, 263 

CHAPTER   XVIII. 
Experts — Professional  Opinions, 273 

CHAPTER   XIX. 
History  of  Medical  Evidence, 285 

CHAPTER    XX. 

The  Importance  of  Medical  Evidence, ....      293 

(15) 


16  CONTENTS    OF   CHAPTERS. 

CHAPTER    XXI.  PAaK 

Duties  and  Responsibilities  of  Medical  Witnesses, 304 

CHAPTER   XXII. 

Privileged  Communications, 319 

CHAPTER    XXIII. 
Medical  Books  as  Evidence 331 

CHAPTER    XXIV. 

Insanity — Knowledge  on  the  subject  limited, 338 

CHAPTER    XXV. 

The  position  of  the  Courts  upon  Insanity, 356 

CHAPTER    XXVI. 

Insanity — The  Medical  Witness — The  Courts " 367 

CHAPTER    XXVII. 

Insanity  in  its  legal  relations, 378 

CHAPTER   XXVIII. 

Partial  Insanity — Delusion, 389 

CHAPTER    XXIX. 

Moral  Insanity — The  Huntington  Case, 400 

CHAPTER    XXX. 

Opinions  of  Laymen,  as  Evidence  upon  Alleged  Insanity, 422 

CHAPTER    XXXI. 

What  Mental  Incapacity  Invalidates  a  Will, 435 

CHAPTER    XXXII. 

Poisons — General  Principles  and  Observations, 439 

CHAPTER    XXXIII. 

Arsenic — Fatal  Dose — Post  Mortem  Examinations, 453 

CHAPTER    XXXIV. 

Taylor's  Analysis  of  Arsenic, 459 

CHAPTER    XXXV. 

Leading  Adjudicated  Cases  in  Arsenical  Poisoning, 494 

CHAPTER    XXXVT- 

Poisoning  by  Strychnia — Adjudicated  Cases 62b 

CHAPTER    XXXVII. 

Testimony  of  Curling,  Todd,  Brodie,  Christison,  etc.,  in  the  Palmer  Case, . .   534 
CHAPTER   XXXVIII. 

Leading  Adjudicated  Cases  in  Poisoning  by  Strychnia, 544 

CHAPTER    XXXIX. 

Infanticide — Adjudicated  Cases, 555 

CHAPTER    XL. 
Wounds — Effects  of  Wounds  in  Producing  Death, 561 

CHAPTER    XLI. 
Rape — Adjudicated  Cases 570 

CHAPTER    XLII. 
Coroner's  Office  and  Inquests, 477 


TABLE  OF  CASES  CITED  WITH  SUBJECTS. 


Page 

Amic  v.  O'Hara— negligence 583 

Alderson  B.  Blythe   v.  Birmingham  W. 

Works  &  Co— negligence 583 

Adams  v.  Stevens— fees 592 

Alder  v.  Buckley— fees 74 

Almond  v.  Nugent— fracture 104 

Baikee  v.  Chadless— error  of  judgment 30 

Blunt  v.  Aiken— druggist 176 

Berthon  v.  Longhman— experts ....276 

Barren  v.  Cobleigh— experts 278 

Ball  v .  Loveland— witness 327 

Bowman  v. Woods—  book  as  ev.  school. 333-584 
Brown  v.Maxwell— negligence  both  parties.583 
Berge  v.  Gardner—  584 

Basset  v.  Spofford— instruments 584 

Barter  v.  Abbott — insanity,  opinions 589 

Buellr.  R.  R.  Co— opinions 589 

Baxter  v.  Gray— fees 593 

Beekman  v.  Planter— fees 593 

Bellinger  v.  Craigue — no  fees  in  mal 592 

Bailey  v.  Mogg— fees - 593 

Branner  v.  Stormant — fracture 85 

Briggsv.  Taylor— negligence £83 

Bemus  v.  Howard— patient  abandoned 586 

Crooker  v.  Hutchinson— ordinary  skill 24 

Can  ham  v.  Jones— druggists 197 

Com.  v.  Parker— abortion 250 

Clark  v,  Reglan — Impressions 270 

Carter  v.  Boehm— opinions -27'5 

Com.  v.  Rodgers — prof,  witness 310 

Chisac  v.  Reinicker— priviledged  cons 323 

Com.  v.  Wilson— insanity 333 

Collier  v.  Simpson—    "     332 

Cocks  v.  Purdy—         "     | 332 

Culver  v.  Haslem — opinions,  Laymen 425 

Clary  v.  Clary—  "  "          432 

Com.  v.  Mauley — poisons 451 

Codman's  Case—       "     451 

Com.  v.  Earls—  "     505 

Com.  v.  Green— wounds 563 

Clark  v.  Kirwan— negligence 583-4 

Corsi  v.  Maretzek — '"schools" 584 

Cambell  v.  Richards — opinions  on  opinions. 588 

Collett  v.  Collett— insanity 589 

Concord  R.  v.  Greeley — expert  test 589 

Cooke  v.  State—  "       "    589 

Com.  v.  Fairbanks —  "       " 589 

Chapinv.  Inhabitants—      "        "    591 

Collins  v.  Grady— fees 592 

Carpenter  v.  Blake — dislocating  shoulder..  109 

Chamberlin  v.  Morgan—      "       joint 109 

Cochran  v.  Miller — erysipelas 197 


Page 

Com.  v.  Thomson— prescribing  lobelia 232 

Chapin  v.  Marl — experts 591 

Doyle  v.  N.  Y.  Eye  Infirmary— the  eye 162 

Durrell  v.  Bederly— experts 376 

Dixon  v.  Parmelee—     "      322 

Dewit  v.  Barley,  et  al— Laymen '. 425 

Doe  v.Regan —  "       432 

Dickinson  v.  Barber —        "        434 

Dew  v.  Clark— wills 435 

Durand  v.  Grimes — fee  license 593 

Dickinson  v.  Gordy —        "        593 

Evens  v.  Getting — books  asev 334 

Ernest  v.  Hudson— ord.  neg 584 

Elfelt  v.  Smith— experts 589 

Emerson  v,  L.  G.  L.  Co — experts 589 

Evarts  v.  Adams — fees 593 

Fleet  &  Semple  v.  Hollenkemp — druggists  170 

Fairlee  v.  The  People — vaccination 238 

Foster  v.  Hall — priviledge 325 

Fowler  v.  Sargeant — "schools  " 585 

Fairchild  v.  Bascom — experts 588 

Fenwick  v.  Bell—  "        589 

Fisku.  Wait — contrib.  neg - 583 

Grannis  v.  Brandon— responsibility 25 

Godfrey  v.  Dutton — gross  neg 27 

Gallaher  &  wife  V.Thompson — fracture  leg  115 

Qreenough  v.  Gaskill— priviledge 324 

Grant  v.  Thompson — Laymen 431 

Gibson  v.  Gibson—          "       432 

Gladwell  v.  SleggaU— gratuitous 585 

Hankee  v.  Hooper — experts.-- 20 

Howard  v.  Grover — responsibility 25 

Hartv.  Frome— err.  of  judg 80 

Harie  v.Reese — fracture 144 

Hick  v.  Persons — experts 280 

Hewitt  v.  Prime— privilege 320 

Huntington  Case — moral  insa 400 

Harrison  v.  Rowan— Laymen 433 

Harley's  Case— poisons 451 

Hell  v.  Glanding— neg 583 

Haley  v.  Earle—      "  683 

Henke  v.  Hooper — "   583 

Holly  v.  B.  G.  Co.— "  584 

Hill  v.  Bodie— diploma .584 

Holland  v.  Adams— fees 584 

Hunt  v.  Lowell— experts 589 

Illidge  v.  Goodwin— druggists 184 

Jones  v  White — experts 278 

Jones  u.  Fay— admin,  of  anaesthetics 588 

Jordan  v.  B.  &  B. — license... 593 

Jordan  v.  Overseers— admin,  of  drugs 593 

Johnson  v.  Moor— wills ' 438 


18 


TABLE  OF  CASES  CITED  WITH  SUBJECTS 


Jamesons  v.  Drinkald— poisons 508 

Kilsley  v.  Williams — ordinary  skill 26 

Kannen  v.  McMullen— reasonable  skill 584 

"  "  fees 592 

Ker.  v.  Cleveland — contributing  neg 583 

Leighton  v.  Sargent— express  con't 21-135 

Laidlcr  v.  Elliott— att'ys  and  med.  men 24 

Lamphier  v.  Phipos— att'y  "         25 

Landon  v.  Humphry,      "  "         25 

Lynch  v.  Mardin — druggist 184 

Liming  v.  The  State— experts -272 

Lester  z).  Rower— laymen 433 

Levy  v.  Bufflngton— wills 436 

Lockhardt  v.  Lich— negligence 583 

Longu.  Morrison— "schools" 585 

Lynch  v.  Davis — placenta 585 

Lest  er  v.  Pittsfort— experts 589 

McCandless  v.  McWha— gen.  rule 23-118 

Moore  v.  Morgue —  "        25 

Mertz  v.  Deweiler —  J,"       25 

Montrion't).  Jefferys —  "        30 

Mayor  of  Albany  v  Cun. — druggists 176 

Moorhouse  r.  Mat. — opinions 275 

:Merrit  v.  Leamen —         "        278 

McKee  v.  Nelson—  "       280 

Mority  v.  Brooks— witnesses 314 

Mosler  v.  Com.— insanity 395 

Morris  v.  Phelps— patients  duty 584 

Many'py  v.  Hart — reasonable 584 

McClel.  v.  Adams    phs's  power 585 

McCurry  v.  Hooper— experts 588 

McNaughton's  case —      "       589 

Mendum  v.  Com.—          "       58D 

McMahon  v.  Tyng—          "       590 

Mock  v.  Kelly— fees 592 

McPher-  v.  Ched. — fees 593 

Mooney  v.  Lloyd —    "    592 

Miller  v.  Beal—         " 592 

Malton  v.  Nesbit— expert 589 

McMillen  v.  Hewitt — eye 146 

McDaniel  v.  Yuba— special  con't 584 

Nelson  v.  Mack— gratuitous  service 635 

Odlin  v.  Stetson— negligance 583 

Pittv.  Yaldln — gen'l  principles 24 

Purvis  v.  Land —         "  24 

Pawtuary  v.  Wolton  "  25 

Phillips  v.  Wood—      "  25 

Patterson  v.  Gand—    " 26 

Percy  v.  Millandon—  "  31 

Pate  v.  People— experts 280 

Parker  v,  Adams— patients  ncg 584 

Patten  v.  Wiggin— leading  case 584 

Pippin  v.  Shep.— gratuitous  service 585 

Perions.  v.  Freeman— su;>t.  hospital 585 

Pirn  v.  Ropor— settlement 586 

Page  v.  Parker— expert 589 

Russell  v.  Palmer— gen'l  principles 24 


T> 

Ramadge  v.  Ryan— opinions  on  opinions. .588 
Reece  v.  Rigby—          "  "  30 

Rochester  v,  Chcs.        "  "        ..589 

Ritchey  v.  West— schools 585 

Ruddock  v.  Lowe—    ''      530 

Rouse  v.  Morris— fees 592 

tHiinpson  v.  Sprague— gen'l  principles 24 

Seare  v.  Pren. —  «'  .25-112 

Sumner  v.  Utley —  li  27 

Shillcock  11.  Pass. —  "  30 

Shiells  v.  Black — druggists 176 

Syra.  R.  R,  v.  Dodley—  "    275 

Sizes  v.  Bxirt — experts 280 

Spencer's  case—      " 303 

State  7',  Clark— opinions 432 

Stewart  -v.  Lis. — wills 435 

States  it.  Sager— poisons 504 

Stephen  v.  State — rape 572 

States  ?'.  Ship —         " .572 

Spencer  v.  Utica,  &c.— neg.  both 583 

Smith  -v.  Smith— patient £84 

Sutton  v.  Tracy — a  sign,  &c 584 

fcimmonds  r.  Henry — dentists 585 

Shields  i>.  Black — gratuitous  service 585 

Sowere  v.  Duke— experts 589 

Seibles  ?/.  Black.—      "      ...589 

Simmons  v.  Means— fees 592 

Smith  ?',  Watson—      "      593 

Sweet  v.  Hooper —      "     592 

Smith  v.  Hyde-         "     593 

Smith  v.  Tracy— druggists 593 

Smothers  v.  Hanks— fractures 74 

Scudder  v.  Crossan—       "        74 

Sherman  v.  Sher.— privileged  commun 322 

Tessymond's  Case  —druggists. 170 

Trial  of  Huntington — witness 307 


Tonawan  R.  R.  v.  Munger — neg 583 

Townley  v.  Leach — phy.  power 585 

Teft  v.  Wilcox— amp 84 

Varnum  v.  Mastin— gen .  priv 24 

Van  Brack  v.  Fonda— druggists 169 

Wilson  v.  Russ— gen.  priv t 21 

Ware  v.  Gay — stiff  ankle 141 

Washington  v.  Cole — experts 279 

Wilmot  v.  Howard— neg 583 

Williams  v.  Mich.  Cen'l  R.  R.— neg 583 

Wright  v.  Brown— neg 583 

White  v.  W.  Co— con.  neg.- 584 

West  v.  Martin— reasonable  dil 584 

Wilson  v.  Brett— grat.  serv 585 

Wood  v.  Clapp— "schools" 585 

Woodward  v.  Hancock  "    585 

Wetherbee's  ex'rs  v.  Weth's  heirs— opin... 588 

Woodbury  v.  Obear— hypo,  ques 589 

Woodin  v.  Plafle — expert 589 

Woodburn  v.  Farm.  &  Merc.  Bank— expert  589 
Walsh  v.  Sayre— gen.  prin 596 


PART    I. 


MALPRACTICE. 


CHAPTER   I. 

GENERAL    PRINCIPLES   OF    LAW   APPLICABLE    TO   MEDICAL    MEN. 

THE  general  principles  of  law,  defining  the  civil  responsibili- 
ties and  duties  of  physicians,  lawyers,  engineers,  machinists,  ship- 
builders, brokers,  and  other  classes  of  men  whose  employment 
requires  them  to  transact  business  demanding  special  skill  and 
knowledge,  are  the  same. 

It  is  of  much  importance,  therefore,  to  these  classes,  that  the 
rules  of  law  applicable  to  them,  be  well  and  clearly  settled,  and 
thoroughly  understood  by  those  upon  whom  they  are  to  act,  as 
well  as  by  the  authorities  upon  whom  devolve  the  responsibility 
of  their  administration. 

Some  of  these  classes,  however,  are  erroneously  supposed  to  be 
held  to  a  more  strict  accountability  than  others.  This  sterner 
rule  has  been,  at  times,  applied  to  the  medical  profession.  It 
was  said  by  the  Court,  in  the  case  of  Leighton  v.  Sargent,1  that, 
"  at  the  present  time,  it  is  to  be  feared,  there  is  a  tendency  to 
impose  some  perilous  obligations,  beyond  the  requirements  of  the 
law,  upon  medical  men."  It  is  to  be  regretted  that  not  only  in 
New  Hampshire,  but  in  almost  all  parts  of  the  country,  this  has 


1  7  Foster,  468. 

(19) 


20  MALPRACTICE. 

been  the  case,  as  if  more  is  to  be  expected  of  that  class,  under 
the  same  set  of  circumstances,  than  any  other. 

At  the  outset,  then,  of  our  inquiry  into  the  subject  of  Medical 
Malpractice,  it  becomes  necessary  to  carefully  define,  as  far  and 
clearly  as  may  be,  the  nature  of  the  contract  entered  into  between 
the  medical  man,  on  the  one  hand,  and  the  public,  or  patient,  on 
the  other,  in  regard  to  his  duties,  qualifications  and  general  con- 
duct, while  this  obligation  rests  upon  him. 

The  nature  of  the  contract  between  the  physician  and  patient, 
and  attorney  and  client,  is  alike:  neither  class,  without  an  ex- 
press contract  to  that  effect,  is  a  warrantor  or  insurer.1  Certainly 
nothing  unreasonable  or  oppressive  should  characterize  the  rule 
of  law  in  its  application  to  the  conduct  of  the  professional  man, 
thus  making  a  different  rule  from  that  applicable  to  other  men. 

The  professional  man  does  not  agree,  or  stipulate,  to  carry  the 
case  through  to  a  successful  issue,  at  all  events,  and  notwith- 
standing all  contingencies ;  and  he  is  not  to  be  tried  by  the  result. 

If  a  man  contracts  to  do  a  thing  that  is  absolutely  impossible 
at  the  time  of  making  such  contract,  he  is  not  bound  thereby, 
because  no  man  can  be  compelled  to  perform  an  impossibility.2 
But  a  distinction  is  taken  between  a  contract  to  do  a  thing 
which  is  accidentally  impossible,  and  wherein  the  party  en- 
gages to  do  something  absolutely  impossible ;  for,  in  the  former 
case,  the  contract  is  binding,  notwithstanding  it  was  beyond  the 
power  of  the  party  to  perform  it — it  being  his  own  fault  and  folly 
that  he  did  not  expressly  provide  against  those  contingencies  he 
should  know  might  possibly  transpire,  and  exempt  himself,  from 
responsibility  in  certain  events.  In  such  a  case,  therefore,  the 
performance  is  not  excused  by  the  occurrence  of  an  inevitable 
accident,  although  it  was  not  foreseen  by,  or  within  the  control  of 
the  party.3 


1  Hancke  v.  Hooper,  7  C.  &  P.  81. 

2  Chitty  on  Cont.  629  ;  Pothier's  Treaite  des  Obligations,  c.  1,  sec.  4. 

3  Chitty  on  Cont.  630  ;  White  v.  Mann,  561. 


GENERAL   PRINCIPLES    OF   LAW.  21 

The  physician  or  surgeon  may,  undoubtedly,  undertake,  by 
express  contract,  to  perform  a  cure  absolutely.1  In  a  contract 
of  this  kind,  the  utmost  diligence  and  skill  will  not  excuse  him, 
should  the  result  be  unfortunate ;  because  it  was  his  own  iiiult, 
or  inexcusable  ignorance,  that  so  uncertain  a  result  should  have 
been  guaranteed  successful.  The  extent  of  the  physician's  or  sur- 
geon's liability,  under  an  express  contract  to  cure,  will  depend 
upon  the  circumstances  of  the  case.  If  he  undertakes  an  absolute 
impossibility,  the  law  will  not  hold  him  responsible  for  the  full 
extent  of  the  damage  resulting  to  the  patient  by  reason  of  the 
failure  to  cure.  His  responsibility  extends  to  a  forfeiture  of  all 
compensation  for  medicine  and  service.  The  impossibility  of  the 
undertaking  excuses  him  in  part. 

Neither  will  a  want  of  sufficient  skill  or  knowledge  to  fulfill  an 
express  contract  excuse  its  performance.  A  builder  may  agree 
to  erect  a  house  or  a  ship  of  a  certain  description,  and  he  can 
not  afterward  excuse  himself  on  the  ground  of  his  want  of  suffi- 
cient skill.  In  that  case,  the  maxim  of  the  Civil  law  applies — 
spondet  periliam  artis — the  person  undertaking  to  do  the  work 
is  bound  to  use  a  degree  of  skill  and  attention  adequate  to  the 
performance  of  his  undertaking;  that  is,  to  do  it  according  to 
the  rules  of  the  art.2  So,  a  surgeon  may  contract  for  the  removal 
of  a  limb,  the  physician  for  the  cure  of  a  disease,  or  the  lawyer 
for  the  foreclosure  of  a*  mortgage ;  and  by  that  contract  he  be- 
comes a  guarantor  of  the  result.  It  is  his  fault  to  undertake  to 
do  a  thing  beyond  his  strength,  or  for  which  he  has  not  sufficient 
skill,  or  to  employ  bad  workmen :  imperitia  eulpceadnumeratur — 
ignorance  is  like  negligence,  for  which  one  is  responsible.3 

Every  person  who  offers  his  services  to  the  public  generally, 
impliedly  contracts  with  the  employers  that  he  is  in  possession  of 


1  Leighton  v.  Sargent,  7  Foster,  468. 

2  Jones,  Bailm.  22,  23,  62,  97,  120 :  Story  on  Bailm.  sec.  431 ;  Coggs  v.  Ber- 
nard. Ld.  Raym.  909 ;  1  Bell's  Com.  459,  5th  Ed. 

3  Story  on   Bailm.  279;  Chitty  on   Cont.  165;  3   Blackstone  Com.  122;  2 
Greenl.  Ev.  145 ;  1  Bouv.  403 ;  Dig.  50,  17,  132. 


22  MALPRACTICE. 

the  necessary  skill  and  experience  which  is  possessed  ordinarily 
by  those  who  practice,  or  profess  to  understand  the  same  art  or 
science,  and  which  is  generally  regarded  by  those  most  conversant 
with  that  profession,  or  employment,  as  necessary  to  qualify  him 
to  engage  in  such  business  successfully. 

Mr.  Justice  STORY  says:  "In  all  these  cases,  where  skill  is 
required,  it  is  to  be  understood  that  it  means  ordinary  skill  in 
the  business  or  employment  which  the  bailee  undertakes  ;  for  he  is 
not  presumed  to  engage  for  extraordinary  skill,  which  belongs  to  a 
few  men  only  in  his  business  or  employment,  or  for  extraordinary 
endowments  or  acquirements.  Reasonable  skill  constitutes  the 
measure  of  the  engagement,  in  regard  to  the  thing  undertaken."1 

Lord  Chief-Justice  TINDALL  says :  "  Every  person  who  enters 
into  a  learned  profession,  undertakes  to  bring  to  the  exercise  of 
it  a  reasonable,  fair  and  competent  degree  of  skill."2 

This  is  the  doctrine  of  the  common  law,  in  its  application 
to  the  ordinary  rank  and  file  of  the  professions  of  Medicine 
and  Law. 

It  may,  at  times,  be  difficult  to  determine  just  what  the  "  or- 
dinary degree  of  skill,"  as  used  by  law  writers,  amounts  to.  It 
may  vary  in  the  same  State  or  country.  There  are  many  neigh- 
borhoods, in  the  West  especially,  where  medical  aid  is  of  difficult 
attainment ;  yet  cases  of  disease  and  surgery  are  constantly 
occurring,  and  they  must,  of  necessity,  fall  into  the  hands  of 
those  who  have  given  to  the  subject  but  little,  if  any  thought 
Thus  the  inexperienced  and  the  unlearned  attend  to  the  surgery 
in  their  way,  or  it  is  not  attended  to  at  all.  In  such  a  case,  and 
under  such  circumstances,  and  for  these  reasons,  the  ordinary 
degree  of  skill  required  by  law  would  be  good  common  sense, 
or  such  knowledge  as  the  operator  had,  joined  with  a  good  pur- 
pose to  help  the  afflicted,  even  if  such  interference  rendered  the 
patient  a  cripple  for  life.  This  is  the  law  in  both  England  and 

1  Bailm.  433. 

2  Lanphire  v.  Phipos,  8  C.  &  P.  475. 


GENERAL    PRINCIPLES    OF   LAW.  23 

this  country.  Even  in  England,  it  was  said  by  Hullock,  in  the 
case  of  Van  Butchell,  that  "  many  persons  would  be  left  to  die  if 
irregular  surgeons  were  not  allowed  to  practice."1  In  these 
cases,  no  more,  of  course,  should  be  expected  of  the  operator 
than  the  exercise  of  his  best  skill  and  judgment,  however  limited 
that  might  be.2 

In  large  cities  and  towns,  are  always  found  surgeons  and 
physicians  of  the  greatest  degree  of  skill  and  knowledge.  Their 
pretensions  are  properly  large.  They  are  to  be  held  to  a  corres- 
ponding high  degree  of  responsibility.  They  contract  to  do 
more  than  the  ordinary  physician,  and  they  are  paid  a  higher 
price  for  what  they  do ;  consequently  the  contract  is  more  diffi- 
cult to  fulfill. 

In  the  smaller  towns  and  country,  those  who  practice  medicine 
and  surgery,  though  often  possessing  a  thorough  theoretical 
knowledge  of  the  highest  elements  of  the  profession,  do  not 
enjoy  so  great  opportunities  of  daily  observation,  and  practical 
operations;  where  the  elementary  studies  are  brought  into  every 
day  use;  as  those  have  who  reside  in  the  metropolitan  towns; 
and  though  just  as  well  informed  in  the  elements  and  literature 
of  their  profession,  they  should  not  be  expected  to  exercise  that 
high  degree  of  skill  and  practical  knowledge  possessed  by  those 
having  greater  facilities  for  performing  and  witnessing  operations, 
and  who  are,  or  may*  be,  constantly  observing  the  various  acci- 
dents and  forms  of  disease. 

It  will  not,  therefore,  as  a  general  thing,  require  so  high  a 
degree  of  knowledge  to  bring  this  class  of  physicians  up  to  the 
rule  of  ordinary  knowledge  and  skill,  as  in  places  where  greater 
facilities  are  afforded,  by  which  higher  professional  knowledge  is 
attainable. 

Judge  BOUVIER,  it  is  true,  has  laid  down  a  different  rule,  which, 
upon  principle,  can  not  be  correct.  He  says :  "If,  for  example,  a 


1 3  C.  &  P.  629. 

8  McCandless  v.  McWha,  22  Penn.  268. 


24  MALPRACTICE. 

farrier  undertakes  to  cure  a  horse,  he  is  required  to  use  reason- 
able skill — if  a  carpenter  undertakes  to  build  a  ship,  he  engages 
to  use  the  same  kind  of  ability — and  the  degree  of  skill  rises  in 
proportion  to  the  value  and  delicacy  of  the  operation.  But  he 
is,  in  no  case,  required  to  have  more  than  ordinary  sldll,  for  he 
docs  not  engage  for  more.  Under  this  rule,  all  professional  men, 
who  can  recover  for  their  services  in  an  action,  are  included ;  and 
their  contract  is  locatio  op er arum,  and  not  mandate."1 

For  the  reasons  already  given,  a  man  should  be  held  responsi- 
ble according  to  what  he  is  actually  able  to  accomplish,  or  for 
what  he  pretends  he  is  able  to  do.  He  asks  a  large  price  for  his 
services,  and  gets  it,  because  he  is  really  superior  to  others  in  his 
knowledge  and  skill,  or  fraudulently  makes  those  who  employ 
him  think  that  this  is  the  case.  He  contracts,  on  his  part,  to  do 
more,  and  to  do  it  better  than  the  generality  of  the  profession. 
Why  not  hold  him  to  this  implied  contract  ?  The  high-minded 
medical  man  wishes  to  be  so  held,  and  the  charlatan  and  pre- 
tender certainly  should  not  be  allowed  to  escape  behind  the 
ordinary  skill  and  knowledge  of  honest  practitioners,  who  actu- 
ally are  prepared  to  accomplish  more  than  he,  but  promise  and 
pretend  less. 

The  principles  of  law  applicable  to  attorneys  and  medical  men 
being  the  same  as  to  responsibility  for  ignorance,  carelessness, 
want  of  proper  attention,  etc.,  the  cases  relating  to  attorneys,  in 
these  respects,  may  be  with  profit  consulted.  Reference  is  here 
made  to  some  cases  where  these  principles  have  been  settled.2 

Most  of  the  cases  referring  directly  to  physicians  and  surgeons, 


1 1  Bouv.  Inst.  403. 

2  Pitt  v.  Yaldin,  4  Burr,  2060 ;  Laidler  v.  Elliott,  3  B.  &  C.  738  ;  S.  C.  5,  D. 
&  R.  635;  Russell  v.  Palmer,  2  Wils.  325;  Hunter  v.  Caldwell,  16  L.  Jour.  2 
B.  274 ;  S.  C.  11  Jur.  770,  and  10,  2  B.  69  ;  Purves  v.  Landall,  12  C.  &  Fin.  91 ; 
Varnum  v.  Mastin,  15  Pick.  440 ;  Stirnpson  v.  Sprague,  6  Greenl.  470 ;  Crocker 
v.  Hutchinson,  1  Vermont  R.  73  ;  Holmes  v.  Peck,  1  R.  I.  Rep.  242  ;  Wilson  v. 
Russ,  7  Shep.  424;  1  Leigh's  N.  P.  196;  2  Greenl.  Ev.  120,  Chitty  on  Cont, 
165 ;  1  Saund.  P.  &  E.  163. 


GENERAL   PRINCIPLES    OF   LAW.  25 

where  the  courts  have  passed  upon  their  responsibility,  are  care- 
fully collected  below.1 

When  the  act  to  be  done  depends  upon  the  skill  of  the 
operator  alone,  the  law  will  imply  an  engagement  to  use  that 
degree  of  skill  necessary  to  produce  the  desired  result ;  the  per- 
son so  employed  having  held  himself  out  to  the  world  as  being 
possessed  of  a  degree  of  knowledge  equal  to  the  undertaking. 
If  he  has  not  the  knowledge  he  claims,  he  is  practicing  a  fraud 
upon  the  employer. 

In  the  case  of  surgeons,  physicians,  attorneys,  etc.,  another 
and  important  element  beside  skill  enters  into  the  result,  and 
for  this  reason  the  degree  of  responsibility  is,  to  a  certain  extent, 
and  in  a  manner,  relieved  and  moderated.  This  important  ele- 
ment is  the  operation  of  causes  and  influences  over  which  the 
practitioner  has  but  little  or  no  influence.  They  are  occult,  and 
no  human  foresight  is  able  to  anticipate  them  before  they  have 
completely  deranged  and  materially  interfered  by  bringing  about 
altogether  a  different  result  than  that  confidently  depended  upon. 

Where  a  surgeon  undertakes  to  treat  a  fractured  limb,  he  has 
not  only  to  apply  the  known  facts  and  theoretical  knowledge  of 
his  science,  but  he  must  contend  with  very  many  powerful  and 
hidden  influences;  such  as  want  of  vital  force,  habit  of  life, 
hereditary  diathesis,  climate,  the  mental  state,  local  circumstances, 
and  a  thousand  other  agencies,  many  of  which  will  be  more  fully 
detailed  hereafter.  These  latent  conditions  often  render  the 
management  of  a  surgical  case  difficult,  doubtful  and  dangerous ; 


1  Seare  v.  Prentiss.  8  East.  347  ;  Slater  v.  Baker,  2  Wils.  359  ;  Moore  v.  Morgue, 
Cow  p.  497  :  Hancke  v.  Hooper,  7  C.  &  P.  81 ;  Lanphier  v.  Phipos,  8  C.  &  P. 
475  ;  Grannis  v.  Brandon,  5  Day,  260  ;  Landon  v.  Humphry,  9  Conn.  Reps.  209  ; 
Howard  v.  Grove,  15  Shep.  97  :  Gallagher  v.  Thompson,  Wright's  Reps.  (Ohio,) 
466  ;  Mertz  v.  Deweiler,  8  W.  &  S.  376  ;  1  Saund.  P.  &  E.  91 ;  1  Wins.  Saund. 
312,  note  2  ;  1  Bouv.  Ins.  403 ;  Bell's  Com.  459  ;  to  other  employments,  in 
Pawtuary,  v.  Wolton,  1  Rolls,  Ab.  92 ;  Bull.  N.  P.  73 ;  Story  on  Bailm.  280,  sec. 
429 ;  Paley  on  Agency,  78 ;  Phillips  v.  Wood,  1  N.  &  M.  434  ;  Leighton  v. 
Sargent,  7  Foster,  468. 


26  MALPRACTICE. 

they  are  all  potent  causes,  frequently  having  greater  influence  in 
the  result  than  all  the  surgeon  may  be  able  to  accomplish. 

For  the  same  reason  the  retainer  of  the  attorney  does  not 
oblige  him  to  conduct  a  suit  to  a  successful  termination.  He  is 
responsible  for  the  same  degree  of  skill  as  required  of  the  sur- 
geon ;  but  he  is  not  to  answer  for  the  proverbially  uncertain  ver- 
dict of  a  jury,  or  for  the  personal  judgment  of  a  court.  These 
are  contingencies  which  no  human  power  can  feel  sure  of  antici- 
pating or  controlling.1 

Ordinary  skill,  applied  to  the  treatment  of  disease,  is  but  one 
of  the  claims  the  public  holds  on  the  medical  man.  He  also 
undertakes  and  contracts  that  he  will  use  reasonable  and  ordinary 
care  and  diligence,  in  the  exertion  and  application  of  his  skill  and 
knowledge,  to  accomplish  the  purposes  for  which  he  is  employed. 
Extraordinary  care  or  extraordinary  diligence  is  no  more  to  be 
required  of  him,  unless  he  contracts  to  furnish  them,  than  extra- 
ordinary skill.  But  what  shall  be  deemed  ordinary  diligence  or 
care,  must  have  reference  to  the  state  of  the  patient.  What 
would  be  ordinary  care  in  certain  circumstances,  would  be  negli- 
gence in  others. 

The  general  rule  applies  here,  as  in  other  contracts,  that  the 
physician  and  surgeon  shall  be  held  accountable  for  the  exercise 
of  such  care  and  diligence  in  their  employment,  as  common-sense 
men,  of  common  care  and  prudence,  usually  exert  where  they  are 
equally  interested  in  business  of  a  similar  kind  and  importance. 
He  agrees  to  be  responsible  for  the  want  of  such  care  and  dili- 
gence, and  he  stipulates,  in  no  event,  without  an  express  contract 
for  that  purpose,  for  any  greater  liability.2 

It  has  been  strenuously  denied  by  some,  that  the  liability  of 
the  professional  man  goes  to  this  extent,  while  others  would  carry 
it  much  further.  There  are  some  old  decisions  that  support  the 


1  Wright's  Rep.  466. 

2  Kilsley  v.  Williams,  5  B.  &  A.  820 ;  Patterson  v.  Gandasaqui,  15  East.  62  j 
Howard  v.  Grover,  15  Shcp.  97  ;  Foster,  7  Shep.  471. 


GENERAL   PRINCIPLES   OF   LAW.  27 

position  that  the  surgeon  or  the  attorney  should  not  be  held  respon- 
sible, except  for  lata  culpa  crassa  negligentia — manifest  fault  or 
gross  negligence.1  These  cases  may  not  have  intended  to  lessen 
the  rule  of  ordinary  skill  and  diligence,  but  they  seem  to  go  further. 

The  sphere  of  responsibility  is  the  same  when  the  wrong  con- 
sists of  negligent  acts,  though  the  measure  of  indemnity  and  pun- 
ishment may  be  different.2 

That  the  physician  is  not  liable,  unless  there  was  crassa  neg- 
ligenticij  was  firmly  maintained  before  the  court  in  the  case  of 
Landon  v.  Humphry,  tried  in  Connecticut  some  years  ago.  It 
was  declared  that  this  was  the  only  reasonable  rule  on  this  sub- 
ject, because,  it  was  said,  what  man,  even  of  skill  and  talents, 
would  undertake  to  practice  medicine,  if  some  little  want  of 
ordinary  skill,  or  failure  of  ordinary  skill,  or  failure  of  ordinary 
diligence,  or  even  some  trifling  want  of  carefulness,  might  sweep 
from  him  the  earnings  of  a  long  life  of  drudgery ;  that  if  this 
rule  was  applied,  no  physician,  however  able  or  skillful,  could 
escape  for  a  year.  The  court,  however,  decided,  in  this  case,  that 
the  doctrine  and  decisions  in  this  country,  and  also  in  England,, 
did  not  require  gross  neglect,  to  make  the  party  liable,  but  that 
there  must  be  ordinary  skill,  care  and  diligence;  that  if  there 
was  either  carelessness  or  want  of  ordinary  skill  and  diligence, 
the  plaintiff  should  recover.3 

It  has  been  said  that  gross  carelessness  means  nothing  in  law, 
and  with  truth. 

In  the  case  of  Philip  C.  Wells  y.  The  New  York  Central  Rail- 
road Co.,  at  the  March  Term,  1858,  the  Supreme  Court  held, 


1  Sumner  v.  Utley,  7  Conn.  Rep.  263 ;  Godfrey  v.  Button,  6  Bing.  461 ;  S.  C. 
4  M.  &  P.  149  ;  Purvis  v.  Lundell,  12  C.  &  P.  91 :  Wilson  v.  Russ,  7  Shep.  424 ; 
1  Leigh's  N.  P.  196. 

2  Archb.  Cr.  PI.  411,  2d  ed.  1846  ;  2  Sel.  Ray.  1583  ;  23  Eng.  Com.  Law  R. 
54-5 ;  3  Maule  &  Sel.  14,  15 ;  1  Lewin's  Cr.  Cases,  169 ;  2  Stark.  Ev.  526  ;  5 
Maule  &  Sel.  198 ;  Broom's  Leg.  Max.  168-9,  1st  ed.;  4  Denio,  464;  41  Eng. 
Com.  Law  Rep.  422,  425  ;  24  Id.  272 ;  19  Wend.  345-6. 

3  Landon  v.  Humphry,  9  Conn.  209. 


28  MALPRACTICE. 

SMITH,  J.,  as  follows :  "  I  see  no  ground  to  measure  the  degree 
of  negligence.  The  distinction  between  the  several  degrees  of 
negligence  is  nice,  and  too  artificial  for  any  clear,  definite  and 
practical  application.  Judge  CURTIS,  in  16  Howard,  477,  says,  it 
may  well  be  doubted  if  these  terms  can  be  usefully  applied  in 
practice.  Judge  STORY  also  remarks,1  that  the  law  furnishes  no 
definition  of  the  terms  ' gross  negligence'  or  'ordinary  negli- 
gence,' which  can  be  applicable  in  practice,  and  these  distinc- 
tions are  utterly  repudiated  by  the  late  civil  law  reporters."  It 
•can  not,  with  any  propriety,  be  applied  legally  to  the  conduct  of 
a  physician  or  surgeon. 

It  has  been  sometimes  contended  that  extraordinary  care 
should  be  bestowed  by  the  medical  attendant  upon  his  patient, 
because  he  deals  with  the  vastly  important  matters  of  life  and 
health.  The  physician  and  surgeon  is,  undoubtedly,  bound, 
morally,  to  exert  extraordinary  care  and  diligence  in  a  case 
where  life  and  health  are  at  stake ;  but  he  can  not,  under  the 
light  of  the  authorities,  be  considered  bound,  in  law,  by  any  other 
rule,  in  this  respect,  than  that  which  governs  all  classes  of  men 
that  require  ordinary  skill  in  their  employment,  work  or  science. 
•"Different  things  may  require  very  different  care.  The  care 
required  in  building  a  common  doorway  is  quite  different  from 
that  required  in  raising  a  marble  pillar,  but  both  come  under 
the  description  of  ordinary  care."2  It  undoubtedly  requires 
a,  higher  degree  of  skill  for  the  successful  and  safe  treatment  of 
iritis  than  that  required  in  rheumatism,  because,  in  the  former 
case,  the  most  important  and  delicate  structure  of  the  system  is 
involved,  the  parts  of  which,  when  affected  with  an  inflammation, 
may  be  soon  destroyed,  so  rapid  and  dangerous  is  the  disease; 
and  unless  treated  intelligently,  and  with  great  promptness,  blind- 
ness quickly  supervenes ;  while,  in  rheumatism,  but  little,  per- 
haps nothing,  can  be  done  hastily,  it  being  a  disease  of  the  joints 


1  Story  on  Bailm.  sec.  99. 
*  Story  on  Bailm.  sec.  429. 


GENERAL   PRINCIPLES    OF   LAW.  29 

and  muscular  system,  usually  requiring  a  long  course  of  treat- 
ment, giving  to  the  attending  physician  full  time  to  study  his 
case,  and  apply  his  means  of  cure. 

Beside  the  application  of  skill,  diligence  and  care,  the  profes- 
sional man  contracts  to  use  his  best  judgment  in  the  treatment 
of  disease  and  injuries.  Great  room  for  difference  of  opinion  is 
left,  in  the  exercise  of  the  art  of  surgery,  as  there  are  usually 
several  ways  of  doing  the  same  thing — different  operations  for 
the  treatment  of  injuries — each  operator  having  a  partiality  for 
that  mode  of  dressing  that  has  been  successful  in  his  own,  or  his 
preceptor's  practice.  This  being  the  case,  the  responsibility  of 
choosing  the  kind  of  dressings,  and  the  mode  of  their  applica- 
tion, is  thrown  upon  §  each  individual  practitioner.  So  great  are 
the  difficulties  of  weighing  the  nice  yet  important  questions  that 
arise  in  every  important  case — first,  to  determine  what  is  to  be 
done,  and  next,  as  to  how  it  may  be  best  accomplished,  require 
the  soundest  judgment  and  discretion  of  the  best  individual  minds 
of  the  profession. 

The  physician  and  attorney  are  not  responsible  for  the  errors 
of  an  enlightened  judgment,  where  good  judgments  may  differ. 
Good  skill  necessarily  implies  good  judgment,  and  when  that 
judgment  is  properly  brought  to  bear,  any  risk  or  any  injury 
that  may  result  from  mistakes  of  this  kind,  is  upon  the  employer 
alone.  It  has  been  w«ll  said,  that  "he,  too,  has  judgment  to  ex- 
ercise in  the  selection  of  the  physician  or  the  lawyer  whom  he 
will  employ;  and  if  he  makes  a  bad  selection — if  he  fails  to 
choose  a  man  of  the  best  judgment — the  result  is  fairly  to  be 
attributed  to  his  own  mistake,  and  is  not  to  be  visited  upon  the 
head  of  the  man  who  has  done  his  best  endeavor  in  his  service."1 
This,  however,  is  to  be  taken  with  some  degree  of  allowance. 
People  in  general  are  not  the  proper  judges  of  the  qualifications 
of  scientific  men,  especially  of  physicians  and  surgeons.  If  they 
were,  imposition  and  charlatanry  would  not  flourish  as  they  do. 

1  Leigbtou  v.  Sargeant,  7  Foster,  473. 


30  MALPRACTICE. 

Where,  then,  there  are  reasonable  grounds  for  doubt  and  dif- 
ference of  opinion,  the  professional  man,  after  the  exercise  of  his 
best  judgment,  supposing  that  he  possesses  the  necessary  know- 
ledge, is  -not  responsible  for  errors  of  judgments  or  mistakes. 
He  will  be  charged  with  error,  or  should  be,  only  where  such 
errors  could  not  have  arisen  except  from  want  of  reasonable  skill 
and  diligence.1 

Lord  MANSFIELD  remarks  "that  attorneys  who  conduct  them- 
selves with  honor  and  integrity,  ought  to  be  protected,  when  they 
act  to  the  best  of  their  skill  and  knowledge.  Every  man  is  liable 
to  errors,  and  I  should  be  very  sorry  to  think  that  it  should  be 
taken  for  granted  that  an  attorney  is  answerable  for  every  error 
or  mistake,  and  to  be  punished  for  it  by  being  charged  with  the 
debt  he  was  employed  to  recover.  A  counsel  may  mistake  as 
well  as  an  attorney ;  yet  no  one  would  say  that  counsel  who  had 
been  mistaken  shall  be  charged  with  the  debt."2 

PORTER,  J.,  remarks :  "  It  has  been  said  that  it  will  not  be  suf- 
ficient for  a  professional  man  to  say  he  acted  to  the  best  of  his 
abilities,  because  he  should  have  formed  a  more  just  estimate  of 
his  own  capacity  before  he  engages  himself.  This  doctrine,  if 
sound,  would  make  an  attorney  responsible  for  every  error  of 
judgment,  no  matter  what  care  or  attention  he  exercised  in  form- 
ing his  opinion.  It  would  make  him  liable  in  all  doubtful  cases, 
where  the  wisdom  or  legality  of  one  or  more  alternatives  was 
presented  for  his  consideration,  no  matter  how  difficult  the  sub- 
ject. But  when  a  person,  who  is  appointed  an  attorney,  has  the 
qualification  necessary  for  the  discharge  of  the  ordinary  duties  of 


1  Hart  v.  Frome,  3  Jar.  547 ;  S.  C.  1  Rob.  595 ;  1  and  C.  &  F.  193  ;  Leighton 
v.  Sargent,  7  Foster,  472 ;  Kemp  v.  Burt,  1  N.  &  M.  262 ;  8.  C.  4  B.  &  A.  424 ; 
Shillcock  v.  Passman,  7  C.  &  P.  289 ;  Laidler  v.  Elliott,  3  B.  &  C.  738  ;  S.  C.  5 
D.  &  R.  635 ;   Montrion  v.  Jefferys,  2  C.  &  P.  113 ;   S.  C.  R.  &   M.  317 ; 
Oodefroy  v.  Dalton,  6  Bingh.  461 ;  S.  C.  4  M.  &  P.  149  ;  Baikee  v.  Chadless,  3 
Camp.  17;   Pitt  v.  Yaldin,  4  Burr.  2060;  Reece  v.  Rigby,  4  B.  &  A.  202;  1 
Saund.  P.  &  E.  63 ;  Chitt.  Con.  165. 

2  Pitt  v.  Yalden,  4  Barr,  2060. 


GENERAL   PRINCIPLES    OF   LAW.  31 

the  trust  imposed,  we  are  of  the  opinion  that  the  occurrence  of 
difficulties  in  the  exercise  of  it  which  offer  only  a  choice  of  meas- 
ures, the  adoption  of  a  course  from  which  loss  ensues  can  not 
make  the  agent  responsible,  if  the  error  was  one  into  which  a 
prudent  man  might  have  fallen.  The  contrary  doctrine  seems  to 
suppose  the  possession,  and  require  the  exercise  of  perfect  wis- 
dom. No  man  would  undertake  to  render  a  service  to  another 
on  such  severe  conditions.''1 

Yet,  in  the  case  of  Howard  v.  Grover,  the  court  seemed  to 
hold  that,  because  the  defendant  erred  in  judgment,  in  not  cutting 
off  the  limb  nearer  the  body,  he  was  liable,  and  damages  were  ren- 
dered against  him  for  $2,000,  not  because  he  failed  to  remove  the 
whole  lirnb,  but  because  he  failed,  as  it  was  thought,  to  remove  it 
a  few  inches  higher  up.  It  was  admitted  that  the  defendant  was 
a  good  surgeon — that  he  did  the  job  under  controversy  skillfully, 
except  that  there  was  an  error  of  judgment  in  the  particular 
mentioned.  The  court  should  have  held  that  the  surgeon  was 
not  responsible  for  mere  errors  of  judgment — then  there  would 
have  been  no  such  verdict. 

What  is  well  and  clearly  settled,  either  by  the  courts  or  by 
statute,  must  be  known  to  the  attorney,  and  applied  by  him  in 
behalf  of  his  client;  for  it  is  only  where  there  is  reasonable 
ground  of  difference  of  opinion,  that  he  is  excusable  from  errors 
of  judgment. 

So  the  physician,  or  surgeon,  must  apply,  without  mistake, 
what  is  settled  in  his  profession.  His  difficulties  and  doubtful 
questions  are  much  greater  than  those  of  the  attorney,  for,  like 
him,  he  has  no  court  of  last  resort,  whose  decision  is  conclusive, 
to  pass  upon  his  unsettled  questions. 

,  If  the  patient  does  not  follow  the  prescription,  and  co-operate 
with  the  surgeon,  he  can  not  afterward  call  the  surgeon  to  an 
account  for  any  unfortunate  result  that  may  attend  the  case. 


Percy  v.  Millandon,  20  Mart.  R.  75. 


32  MALPRACTICE. 

In  the  case  of  McCandless  v.  McWha,  the  Supreme  Court  01 
Pennsylvania  said :  "  Nothing  can  be  more  clear  than  that  it  is 
the  duty  of  the  patient  to  co-operate  with  his  professional  adviser, 
and  to  conform  to  the  necessary  prescriptions ;  but  if  he  will  not, 
or  under  the  pressure  of  circumstances  he  can  not,  his  neglect  is 
his  own  wrong  or  misfortune,  for  which  he  has  no  right  to  hold 
his  surgeon  responsible.  No  man  may  take  advantage  of  his 
own  wrong,  or  charge  his  misfortune  to  the  account  of  another."1 

While  the  careless  and  ignorant  of  the  profession  are  obnox- 
ious to  censure  and  liability,  the  most  skillful  may  become  so 
by  ordinary  neglect.  If  he  leaves  his  patients  in  the  hands  of 
incompetent  persons,  when  they  are  under  his  control,  so  that  his 
surgical  cases  are  improperly  dressed,  he  runs  the  risk  of  being 
held  responsible  for  their  conduct.  He  must  either  dress  the 
limb  himself,  or  see  that  it  is  correctly  done.  He  must  also  visit 
the  patient  as  often  as  the  circumstances  of  the  case  seem  to 
require — of  which  he  is,  in  general,  to  be  the  judge. 

Should  the  physician,  or  surgeon,  by  reason  of  indolence,  or 
matters  not  connected  with  his  profession,  neglect  the  patient  he 
had  assumed  to  treat  as  surgeon,  he  is  liable.  The  law  requires 
every  man  who  engages  in  a  profession  or  special  calling,  requiring 
peculiar  knowledge  and  skill — who  holds  himself  out  to  the  world 
as  possessing  that  knowledge  and  skill — to  devote  enough  time 
to  such  profession  as  will  enable  him  to  discharge  its  duties  with 
watchfulness  and  care.  If  the  lawyer  undertakes  to  foreclose  a 
mortgage,  and  abandons  or  neglects  the  matter,  by  which  the  client 
suffers  loss,  he  will  be  held  to  account  to  his  client  for  the  dam- 
ages. So  a  physician  or  surgeon,  who  voluntarily  abandons  or 
neglects  his  patient,  from  any  cause  under  his  control,  by  the 
same  rule,  can  not  be  held  irresponsible. 

It  is  no  safer,  therefore,  for  a  physician  or  surgeon  to  have  too 
many  kinds  of  business  on  hand,  than  for  an  attorney.  The 
special  engagement  must  be  fulfilled. 

,  »  22  Penn.  State  Reports,  268. 


GENERAL   PRINCIPLES   OF   LAW.  33 

That  physician  who  can  not  devote  the  greater  part,  at  least, 
if  not  the  whole  of  his  time,  to  the  profession  and  the  kindred 
sciences,  should  abandon  it  altogether — it  will  be  better  for  his 
patient,  his  profession,  and  safest  for  himself. 

This  life  is  too  short  for  a  man  to  perfect  himself  in,  and  carry 
along  very  many  different  kinds  of  business,  without  more  indus- 
try than  falls  to  the  lot  of  most  men ;  two  important  kinds  of 
business,  one,  either  the  law  or  medicine,  can  not  be  properly 
attended  to  at  the  same  time.  The  boundless  science  of  medi- 
cine, in  all  its  departments,  requires,  and  may  well  demand,  all 
the  time  and  talents  of  its  votaries.  Its  advancement  and  per- 
fection of  knowledge  result  from  the  accumulated  labors  of  the 
ablest  successive  minds  of  the  profession  from  one  age  to  another. 
As  a  science,  it  has  to  contend  with  more  sources  of  error  than 
any  other;  and  it  should  be  the  pride  of  every  American  physi- 
cian to  add  to  the  present  mass  of  facts ;  thus  aiding  in  removing 
gradually  from  the  profession  the  difficulties  and  reproach  that 
weigh  so  heavily  upon  it. 

It  must  be  admitted  that,  in  America  more  than  in  the  Old 
World,  it  is  the  habit  of  the  physician  to  mingle  other  pursuits 
with  his  profession.  This  and  other  reasons  led  Sydney  Smith,  a 
quarter  century  ago,  to  ask,  contemptuously,  "What  does  the 
world  yet  owe  to  American  physicians  or  surgeons?"  The  im- 
plied delinquency  of  the  American  profession,  in  this  question, 
was  untrue  when  propounded;  but,  at  this  day,  the  answer  may 
be,  unhesitatingly,  that  the  world  owes  to  the  American  profession 
the  first  successful  introduction  and  application  of  the  anaesthetic 
agency,  which  has  done  more  for  surgery  than  all  other  inven- 
tions put  together.  To  it  the  world  owes  the  first  deep,  bold,  yet 
successful  operation  on  the  vessels  of  the  throat  and  neck.  Amer- 
ican surgery,  for  the  last  twenty-five  years,  leaves  a  record  worthy 
to  stand  beside  that  of  England. 

This  the  English  profession  has  the  honor  to  acknowledge.  A 
late  English  writer  says :  "  We  must  here  take  the  liberty  of  say- 
ing, that  few  things  have  pleased  us  more  than,  in  course  of  our 
3 


34  MALPRACTICE. 

reading  lately,  to  find  such  surprising  improvement  in  the  period- 
ic d  literature  of  our  transat!antic  cousins.  The  American  jour- 
nals which  we  have  read  recently  abound  in  the  most  valuable 
and  original  articles,  and  show  the  rapid  strides  which  our  friends 
are  making  to  compete  with  the  mother  country.  We  need  only 
add  that  they  have  our  best  wishes.  We  watch  their  progress 
with  the  greatest  pleasure." 

It  is  not  to  be  denied  that  most  of  the  great  and  important 
discoveries  in  medicine  and  surgery  have  been  wrought  out  by 
long  and  laborious  efforts  of  the  great  mon  who  have  represented 
medicine  in  Europe ;  still,  the  profession  in  America  presents  a 
bright  galaxy  of  names,  who  have  not  been  behind  in  creditable 
and  honorable  deeds.  They  have  earnestly  and  successfully 
labored  to  clear  away  the  obscurities  that  hung  around  the  science 
at  the  commencement  of  this  century,  and  to  lift  it  from  the 
labyrinth  of  conjecture  and  uncertainty  that  seems,  necessarily, 
to  cling  to  it. 

The  American  profession  of  medicine  may  well  be  proud  of 
the  bright  array  of  names  that  adorns  its  past  and  present  his- 
tory. During  the  last  century  the  profession  in  England  was 
luminous  with  great  lights,  through  whose  efforts  a  vast  amount  of 
facts,  illustrating  medicine  and  surgery,  that  lay  hidden  deep 
beneath  ignorance  and  error,  were  brought  out  and  practically 
applied.  But,  during  the  last  fifty  years,  the  American  physi- 
cians and  surgeons  have  fully  equaled  those  of  England.  There 
is,  at  this  time,  a  mental  activity  in  the  American  profession  that 
will,  without  doubt,  in  a  few  years,  place  it  in  advance  of  the 
world,  in  regard  to  new  discoveries,  and  the  practical  application 
of  old  ones.  Upon  the  foundation  of  Practical  Medicine,  Chem- 
istry and  Surgery,  so  ably  and  deeply  laid  by  the  labors  of  the 
English  and  French  medical  men,  is  to  be  reared  a  noble  super- 
structure by  the  American  profession.  While  the  law  only  holds 
the  profession  accountable  for  the  faithful  use  and  application  of 
the  facts,  means  and  principles  already  discovered  and  under- 
stood, yet  its  honor  as  well  as  a  great  moral  law,  require  of  its 


GENERAL   PRINCIPLES    OF   LAW.  35 

members,  the  discovery  of  new  principles,  new  relations,  and  the 
new  application  of  old  principles.  As  this  is  bjing  done,  medi- 
cine and  surgery  will  stand  higher  and  higher  in  the  opinion  of 
intelligent  men,  than  it  has  ever  stood;  and,  what  is  of  still  more 
importance,  its  field  of  usefulness  will  be  greatly  extended — thus 
illustrating  the  celebrated  sentiment  of  Cicero,  "Nothin<>-  so 
nearly  approaches  the  character  of  the  gods,  as  giving  hetuth 
to  our  fellow-men." 


SEE  APPENDIX,  page  583,  for  full  Notes  on  this  Chapter. 


NOTE  1. — The  term  physician  or  surgeon  may  be  legally  applied  to  any  one, 
In  the  absence  of  statutes  on  the  subject,  who  announces  himself  as  such,  and 
undertakes  to  heal  th/.}  sick  or  injured  for  or  without  reward,  and  no  distinction 
is  made  between  "schools."  (Sutton  «.  Macy,  1  Mich.  243.  Judge  Daly  says: 
"  In  determining  the  legal  significance  of  the  word  '  physician  '  or  '  doctor,'  when 
used  in  a  contract,  the  term  must  be  held  to  mean  any  person  who  makes  it  his 
regular  business  to  practice  physic.  In  adverting  to  the  conflicting  views  and 
differences  of  opinion  that  exist  and  have  existed  in  the  healing  art,  it  is  not  to 
call  in  question  the  value  of  learned,  skilful  and  experienced  physicians,  but 
merely  to  show  the  error  of  attempting,  in  the  present  statj  of  medical  science, 
to  recognize,  as  a  matter  of  law,  any  one  system  or  practice,  or  of  declaring  that 
the  practitioner  who  follows  a  particular  system  is  a  doctor,  and  that  one  who 
pursues  a  diflerent  method  is  not."  Corsi  ».  Maretzek  4;  E.  D.  Smith  1.  See 
.also  Bowman  v.  Woods,  1  Iowa,  441. 

NOTE  2. — In  Low  «.  McNevins,  40  111.,  209,  the  Court  say:  "  In  the  third  and 
fourth  instructions  for  the  plaintiff,  the  Court  told  the  jury  that  the  defendant, 
if  he  held  himself  out  as  a  physician,  was  liable  for  whatever  damage  may  have 
accrued  to  the  plaintiff  by  roason  of  any  want  of  skill  or  care  on  his  part,  whether 
he  charged  fees  or  not.  This  states  the  responsibility  of  the  physician  too  strongly, 
as  it  requires  the  highest  degree  of  skill  and  care,  whereas  only  reasonable  care 
and  .skill  are  necessary,"  Smothers  t>.  Hanks,  34  Iowa,  288.  An  important  case 
is  reported  in  11  Am.,  Rep.  141,  on  the  responsibility  of  Surgeons.  See  also, 
Braunberger  v.  Cleis,  Am.  Law  pp.  1864-5,  p.  587.  Heavy  damages  recovered. 

Under  the  Statutes  of  New  York,  Ohio,  and  perhaps  most  of  the  States,  no 
diff  jrence  in  the  legal  status  between  the  different  schools  of  practitioners  is 
recognized.  So,  if  a  practitioner  who  had  a  right  to  practice  under  the  Statutes 
is  called  a  quack,  he  may  maintain  an  action  for  damages,  for  it  is  in  effect 
charging  him  with  want  of  the  necessary  knowledge  and  training  to  practice  the 
system  of  medicine,  which  he  undertakes  to  practice.  White  v.  Carroll  42  j 
N.  Y.  160  ;  Corsi  v.  Maretzek  4;  E.  Smith  1. 


CHAPTER  II. 

THE  INHERENT  ELEMENTARY  DIFFICULTIES  CONNECTED  WITH  THE 
PRACTICE  OF  MEDICINE  AND  SURGERY. 

WHAT  is  well  and  clearly  settled,  either  by  the  courts  or  by 
statute,  must  be  known  and  applied  by  the  attorney,  for  it  is  only 
where  there  may  be  a  reasonable  ground  of  difference  of  opinion, 
that  he  is  excusable  for  errors  of  judgment;  so  with  the  physi- 
cian— he  must  know  what  is  well  settled  in  his  profession — for  he 
will  be  held  responsible,  if  he  fails  to  apply,  in  a  particular  case, 
what  is  settled  in  the  profession,  as  being  applicable  to  the  case. 
Both  law  and  medicine  are,  proverbially,  uncertain.  There  are 
some  principles  that  may  be  considered  settled  in  both  profes- 
sions. Statutory  law,  depending  upon  the  action  of  the  Legisla- 
ture for  its  existence,  is  also  dependent  upon  it  for  its  continued 
life.  While  in  existence  it  may  be  considered  settled ;  but  its 
continuance  is  as  uncertain  as  the  character  of  the  Legislature 
that  has  jurisdiction  over  it.  Many  decisions  of  the  courts  are 
as  well  settled  as  statutory  law,  and  not  so  liable  to  be  disturbed. 
Many  statutes  and  decisions  have  stood  untouched  for  years.  So 
far  as  this  is  true,  law  is  fixed  and  settled,  and  the  practicing 
attorney  is  expected  to  know  it.  Some  old  questions,  and  most 
new  ones,  are  fluctuating,  and  so  unsettled  are  they,  that  no  law- 
yer can  tell  what  will  be  the  final  result,  or  to  what  point  they 
will  finally  gravitate.  Those  questions  that  have  not  been  passed 
upon  by  the  highest  court  in  the  State  where  they  arise,  can  not 
be  considered  settled,  even  for  the  time  being ;  but  after  the  court 
of  last  resort  has  passed  upon  them,  these  points  are  settled  for  a 

(36) 


*    ELEMENTARY    DIFFICULTIES    OF   MEDICINE.  37 

season.  It  might  be  shown,  without  difficulty,  upon  what  the 
uncertainty  of  law  depends :  why  different  countries  and  different 
States  in  the  same  country,  have  different  rules  of  civil  and  com- 
mercial action;  but  this  is  not  our  purpose — it  being  with  the 
uncertainty  of  medicine  that  we  have  to  deal  at  present.  While 
the  uncertainty  of  medicine  is  readily  admitted,  the  reasons  of 
this  uncertainty,  and  the  unsettled  state  of  the  science,  are  far 
from  being  understood ;  and,  not  being  understood,  more  blame 
is  often  thrown  upon  the  physician  or  surgeon  than  if  there  ex- 
isted an  intelligent  knowledge  of  the  real  inherent  difficulties  of 
his  profession.  It  is  not  improbable  that  the  members  of  the 
Bar,  intelligent  as  they  generally  are,  may  not  fully  realize  the 
necessary  and  formidable  difficulties  that  the  medical  and  surgical 
practitioner  have  to  encounter  at  every  step,  and  the  uncertainty 
of  the  results,  even  in  the  hands  of  the  most  skillful  and  expe- 
rienced. It  is  believed  that  if  this  was  the  case — if  lawyers 
fully  comprehended  all,  or  even  a  part  of  the  great  and  difficult 
problems  of  life,  both  in  health  and  disease,  which  the  physician 
and  surgeon  are  trying  anxiously  and  patiently  to  overcome  and 
solve ;  fewer  cases  of  alleged  Malpractice  would  find  their  way  into 
courts  of  justice,  and  able  advocates  would  less  readily  lend  them- 
selves to  their  support.  Much  of  the  uncertainty  in  medicine 
arises  from  the  fact  that  the  peculiar  province  of  that  science  is 
the  investigation  and  management  of  animal  life,  which  can  not 
be  fully  understood.  Its  action  is  still  hid  in  the  deep  secrets 
of  nature.  Sir  GILBERT  ELAINE,  one  of  the  ablest  writers  of  the 
medical  profession,  says :  "Animal  life  is  not  only  the  most  com- 
plicated department  of  nature,  but  the  most  vague ;  for,  beside 
being  more  or  less  subject  to  chemical  and  mechanical  agencies,  it 
possesses  such  a  number  of  attributes  peculiar  to  itself,  and  those 
of  such  various  and  fluctuating  nature,  as  to  put  their  influence 
and  combination  beyond  the  reach  of  all  calculation,  and  so  as  to 
present  the  most  formidable  and  discouraging  obstacles  to  those 
who  may  propose,  a  priori,  to  predict  or  control  its  operation, 
whether  in  health  or  disease." 


38  MALPRACTICE. 

Again :  "  From  what  has  already  been  said,  however,  it  is  man- 
ifest, this  certainty  holds  less  strictly  in  the  living  human  body 
than  in  any  other  subject  in  nature  with  which  we  are  acquainted,, 
to  which  art  can  be  applied.  The  simplicity  of  the  laws  of  inan- 
imate nature  admits  of  the  most  certain  inferences,  whereas  the  in- 
definite action  and  reaction  of  the  numerous  faculties  peculiar  to 
life,  add  greatly  to  the  difficulty  and  uncertainty  of  experiment 
and  observation,  as  already  set  forth.  But  this  is  not  all :  for 
constitution  being  endowed  with  various  degrees  of  these  facul- 
ties, an  endless  variety  is  found  to  take  place  among  individuals, 
giving  rise  to  that  uncertainty  in  the  result,  that  has  brought  upon 
it  the  character  of  a  conjectural  art."1  There  is  almost  an  infinite 
variety  of  predisposing  causes  of  disease,  to  which  all  constitu- 
tions are  more  or  less  exposed,  which  influence  the  delicate  struc- 
ture and  functions  of  the  human  body.  They  are  not  actual  dis- 
ease ;  but  where  an  accident  overtakes  the  individual  laboring 
under  them — and  who  does  not  ? — it  is  the  match  applied  to  the 
pre-existing  magazine.  Many  of  the  symptoms  that  arise  are 
erroneously  and  blindly  attributed  to  the  wound  or  injury — the 
immediate  exciting  cause — or  to  the  treatment,  when,  in  truth, 
they  are  to  be  sought  for  behind  these  circumstances,  having 
been  existing,  possibly  for  years,  under  an  appearance  of  health. 

Then  there  is  the  vast  range  of  debilitating  influences — such 
as  improper  nourishment,  impure  air,  excessive  exertion  of  mind 
and  body,  want  of  exercise,  and  sedentary  habits,  general  long- 
continued  heat  or  excessive  cold,  habitual  intemperate  use  of 
intoxicating  liquors;  the  depressing  passions  of  mind,  such  as 
fear,  grief  and  despondency ;  excessive  and  repeated  evacuations, 
either  of  blood  or  of  some  secretion ;  previous  debilitating  dis- 
eases, and  the  like.  There  may  be,  also,  a  permanent  state  of 
excitement  or  activity  in  the  system,  bringing  the  circulation  up 
to  a  high  degree  of  activity,  though  not  an  actual  disease ;  there 
is  what  has  been  called  a  redundancy  of  health,  and,  while  there 

1  Elements  of  Medical  Logic,  London,  1825,  pages  31,  237. 


>    ELEMENTARY    DIFFICULTIES    OF    MEDICINE.  39 

is,  undoubtedly,  more  than  usual  capacity  of  resisting  those  forms 
of  disease  which  operate  by  depressing  the  powers  of  life,  such 
as  cold,  malaria,  infection,  etc.,  there  is,  at  the  same  time,  a  pre- 
disposition to  suffer  at  once  from  causes  of  additional  excite- 
ment. A  brain  already  over  active  from  hard  study  or  other 
exciting  cause?,  may  be  too  easily  brought  up  to  the  stage  of  a 
dangerous  inflammation,  by  the  additional  aid  of  a  strong  moral 
or  mental  emotion. 

Prc'clivity  to  disease  is  often  caused  by  previous  disease,  hid- 
den, it  may  be,  independently  of  its  weakening  influences.  This 
is  particularly  the  case  with  some  forms  of  inflammation  and 
nervous  diseases.  Thus,  a  child  that  has  once  had  croup  is  very 
liable  to  a  recurrence  of  the  difficulty.  An  attack  of  enteritis, 
or  tonsilitis,  is  apt  to  lay  the  foundation  for  succeeding  attacks. 
Such  convulsive  diseases  as  chorea,  hysteria  and  epilepsy,  are 
extremely  liable  to  recur,  and  they  are  ever  ready  to  appear  in 
full  violence,  on  the  application  of  any  exciting  cause,  such  as  the 
various  injuries  the  surgeon  is  called  to  heal.  There  are  also 
constitutional  predisposition  to  disease,  which  is  not  to  be 
ascribed  to  a  previous  attack,  but  to  the  persistence  in  the  sys- 
tem of  a  condition  favoring  that  attack.  Rheumatism,  gout, 
gravel,  many  cutaneous  diseases,  dropsy  and  jaundice,  are  exam- 
ples of  this  tendency.  A  person  who  has  once  suffered  from 
any  of  these  diseases,  is  liable  to  a  recurrence  of  the  same  on 
the  application  of  an  exciting  cause.  Although  free  from  the ' 
attack,  he  may  not  be  free  from  some  functional  or  structural 
imperfection,  which  caused  the  previous  attack,  or  results  from 
it,  and  which  is  easily  brought  into  operation  by  the  addition  of 
an  exciting  cause,  or  an  outside  stimulating  influence.  There  is 
to  be  found,  also,  a  predisposition  to  many  structural  diseases, 
such  as  tuberculous  and  malignant  formations.  Where  such  have 
once  appeared,  there  is  generally  a  tendency  to  their  reproduc- 
tion. Sometimes  this  influence  is  very  strong,  though  latent 
until  brought  out  by  an  exciting  cause. 

There  may  be  actual  disease  already  existing  in  the  body, 


40  MALPRACTICE. 

even  when  altogether  beyond  the  closest  observation  of  the  most 
skillful,  that  predisposes  to  other  disorders,  independently  of  its 
weakening  effect.  Structural  lesions  of  the  heart  and  liver, 
tumors,  ulcers,  aneurism,  frequently  induce  obstructions  and  irri- 
tations of  blood-vessels,  which,  though  not  themselves  causing 
open  disease,  render  these  organs,  thus  affected,  rife  for  its  de- 
velopment, on  the  supervention  of  an  external  excitement. 
Disease  of  the  heart,  by  causing  an  accumulation  of  blood  in  the 
veins,  often  leads  to  congestion  of  the  lungs  and  liver,  and 
sometimes  other  important  organs ;  and  though  unknown  before, 
it  only  requires  the  additional  influence  of  an  outside  or  ex- 
exciting  cause,  like  a  concussion,  contusion  or  fracture,  to  bring 
about  an  attack  of  asthma,  jaundice,  or  even  death  may  super- 
vene from  these  occult  causes,  first  brought  to  light  by  the 
accident  or  injury,  but  for  which  the  patient  would  have  experi- 
enced but  little  difficulty  and  no  danger,  and  the  medical  attend- 
ant would  have  had  no  trouble  with  the  case. 

To  these  accidental,  or  acquired  predisposing  causes,  are  to  be 
added  those  which  are  born  in  the  individual,  and  those  which 
arise  from  the  circumstances  of  age,  growth,  etc.  These,  depend- 
ing upon  something  defective  or  ill-balanced  in  the  organization, 
are  developed  only  when  wrought  upon  by  an  external  exciting 
cause. 

Hereditary  tendency  to  disease  is  one  of  the  most  certainly 
established  facts  in  pathology ;  yet  its  operation  and  manifesta- 
tions are  most  singular  and  uncertain.  The  surgeon  and  the 
physician  are  constantly  on  the  look-out  for  the  manifestation  of 
this  influence,  and  yet  they  are  often  deceived,  failing  to  trace 
it  when  it  is  alive  and  active,  and  also  liable  to  meet  it  where 
they  have  reason  least  to  expect  it.  This  tendency  may  exist  in 
a  family  attended  by  the  same  medical  man  for  years,  and  he 
may  not  be  able  to  detect  it,  until  brought  out  by  some  sud- 
den, severe  accident.  Nothing  is  better  understood,  by  both 
the  professional  and  the  unprofessional,  than  that  scrofula, 
gout,  rheumatism,  epilepspy,  mania,  asthma,  blindness,  syphilis, 


-,      ELEMENTARY    DIFFICULTIES   OF   MEDICINE.  41 

deafness  and  consumption,  run  in  families — that  the}7  are 
transmitted  from  parent  to  offspring,  from  generation  to  genera- 
tion ;  yet  its  appearance  is  very  uncertain,  both  as  to  time  and 
the  number  of  the  family  affected  with  the  disease  of  the  parent. 
Part  of  the  children  may  be  affected,  and  the  others  manifesting 
no  appearance  of  the  peculiar  diathesis;  in  fact,  it  may  pass 
over  whole  generations,  or  remain  in  an  occult  state,  and  then 
again  be  developed  in  precisely  its  original  character  and 
violence. 

How,  then,  can  the  surgeon  count  on,  or  be  prepared  to  coun- 
teract this  hidden,  yet  terribly  potent  and  dangerous  influence  ? 
In  constitutional  syphilis,  a  first-born  child  of  parents,  one  of 
whom  has  been  infected,  may  be  tainted  with  the  venereal  poison, 
while  the  second  is  apparently  sound,  the  third  or  fourth  again 
may  be  affected,  and  the  next  appear  well.  In  this  way  a  dis- 
ease may  go  on  from  generation  to  generation,  or  it  may  stop 
short  at  one.  Again,  the  hereditary  influence  is  greatly  modi- 
fied by  sex ;  the  females  being  attacked  with  one  form  of  dis- 
ease and  the  males  another — another  of  a  different  character 
altogether.  This  phenomenon  results,  undoubtedly,  from  a  double 
influence — one  section  of  the  family  deriving  it  from  the  mother 
and  the  other  from  the  father.  This  hereditary  influence  is  sel- 
dom developed  in  infancy,  but  more  frequently  in  after  lite,  being 
developed  by  growth  and  the  accidents  of  life.  The  parent  has 
the  disease  in  middle  life ;  the  son,  by  living  freely,  may  get  it 
sooner,  or,  by  good  luck,  good  care  and  temperance,  it  may  not 
appear  until  advanced  life,  or  not  at  all.  There  is  a  disease 
transmitted  from  the  father  to  the  son,  but  remaining  dormant 
forty  or  fifty  years.  So  irregular  is  the  development  of  heredi- 
tary disease,  that  the  child  may  be  affected  before  the  disease 
has  shown  itself  in  the  parent.  The  children,  one  after  another, 
are  affected,  and  afterward  the  parent  shows  that  an  anticipatory 
action  is  exercised  in  the  offspring.  A  case  is  recorded  where 
the  parents  were,  apparently,  healthy,  but  the  children,  one  after 
the  other,  died  at  the  age  of  nineteen  of  consumption;  after- 


42  M  A  Ll'KACTICE. 

ward,  and  at  the  age  of  fifty-three,  the  mother  died  of  well- 
marked  tubercular  pulmonary  disease. 

Temperament  consists  of  a  predominance  or  defect  of  some 
function  or  set  of  functions — the  active  or  the  sanguine,  the  slow 
or  phlegmatic,  the  melancholic  or  desponding,  the  nervous  or 
irritable  temperaments — all  tend,  in  different  directions,  to  com- 
plicate particularly  the  treatment  of  injuries,  as  well  as  acute 
disease  generally ;  then  all  these  temperaments  are  mingled  and 
intermingled,  so  that  a  pure  type  of  the  different  temperaments 
is  comparatively  rare.  Age,  also,  is  an  important  cause  tending 
to  vary  the  result  of  medical  and  surgical  treatment :  the  pro- 
clivity to  disease  being  very  diilerent  in  early  infancy  from  what 
it  is  at  puberty.  Adult  age  again  affords  a  condition  of  physical 
habit  differing,  not  only  very  essentially  from  infancy,  childhood 
and  puberty,  but  from  old  age.  In  infancy,  the  low  caloric 
powers  of  the  body  dispose  it  to  suffer  from  the  bad  effects  of 
atmospheric  influences ;  hence  the  tendency  to  visceral  inflamma- 
tion. The  skin  is  liable  to  exception,  in  consequence  of  the 
diying  medium  in  which  it  is  placed,  and  its  general  tenderness 
and  irritability.  The  virgin  state  of  the  alimentary  canal  ren- 
ders it  peculiarly  liable  to  disease.  The  brain,  excited  by  the 
novelties  of  a  new  world,  is  rapidly  developed,  and  in  its  rapid 
change  and  increased  activity,  it  is  peculiarly  exposed  to  a  mor- 
bid action.  Teething  adds  another,  and  a  very  serious  one,  to 
the  many  causes  of  irritability  and  danger  in  infancy.  When 
an  accident  overtakes  a  child,  each  and  all  of  these  existing 
causes  tend  greatly  to  complicate,  retard  and  embarrass  the  case. 
Tn  children  the  functions  that  administer  to  growth  being  in  great 
activity,  the  organs  of  digestion  and  assimulation  are,  therefore, 
most  obnoxious  to  diseased  action  when  excited  by  outside  causes 
Puberty  brings  with  it  strong  susceptibilities,  and  alterations  in 
the  constitution,  chiefly  in  the  female  sex ;  menstruation  is  to  be 
established,  and  many  and  serious  are  the  evils  resulting  from 
external  causes,  which  check  the  development  of  this  function — 
it  having  a  nervous,  as  well  as  a  vascular  relation.  It,  therefore,. 


>       ELEMENTARY    DIFFICULTIES    OF   MEDICINE.  43 

plays  an  important  part  in  surgical  cases.  At  this  time,  in  both 
sexes,  the  system  undergoes  great  and  important  changes.  The 
glandular  system  is  extremely  liable  to  congestion  and  inflamma- 
tion ;  tubercles  are  rapidly  developed  in  the  lungs,  and  these 
organs  are  much  disposed,  at  this  period,  to  take  on  inflammation 
of  their  substance  and  mucous  membrane,  when  aroused  by  an 
injury.  At  the  termination  of  growth  there  .is  another  critical 
period :  the  cessation  of  that  appropriation  of  nourishment  for 
the  increase  of  the  body  that  had  hitherto  been  going  on,  may 
cause  fullness  of  the  vessels,  and  a  disposition  to  hypertrophy, 
hemorrhage  and  inflammation,  in  the  most  healthy;  and  in  the 
chachectk',  to  morbid  disposition,  especially  of  the  tuberculous 
kind.  The  buoyancy  of  animal  spirits,  and  the  impulsive  energy 
of  youth,  do  not  always  indicate  immunity  from  disease.  An 
acute  disease  or  an  accident,  at  this  particular  time,  is  attended 
with  more  danger,  and  less  under  the  surgeon's  control,  than  if 
this  stage  is  passed. 

Very  peculiar  difficulties  attend  the  treatment  of  surgical  cases 
in  old  age.  The  joints  stiffen,  the  textures  of  the  body  change, 
owing  to  the  altered  vascular  action  in  the  different  parts  of  the 
vascular  system,  the  capillary  blood-vessels,  that  great  system 
which  supports  and  sustains  life  and  strength  in  the  body.  The 
blood  abounds  in  the  large  vessels,  causing  congestion  and  inflam- 
mation. Chemical  transformations  show  themselves  in  deposits, 
and  the  like,  in  different  parts  of  the  system,  from  the  heart,  the 
great  center  of  life,  to  the  most  distant  extremity.  The  active 
functions  of  the  system  being  thus  paralyzed,  the  healing  process 
goes  on,  if  at  all,  at  a  slow,  unsteady  and  imperfect  pace.1 

These  are  some  of  the  causes — not  all — that  trouble,  perplex  and 
complicate  the  practice  of  the  surgeon  and  physician;  and  it  seems, 
therefore,  important  that  not  only  should  the  surgeon  be  able  to 


1  For  this  analysis  I  am  principally  indebted  to  the  "  Principles  of  Medicine, 
Comprising  General  Pathology  and  Therapeutics,  Etiology,"  etc.,  by  C.  J.  B.- 
Williams, M.  D.,  F.  R.  S. 


44  MALPRACTICE. 

thus  vindicate  his  practice  and  account  fully  for  the  uncertainty 
of  his  science,  even  under  apparently  favorable  circumstances, 
but  the  lawyer,  also,  ought  fully  to  comprehend  all  the  embarrass- 
ments and  impossibilities  that  environ  a  noble  sister  profession. 

If  the  lawyer  is  clearly  satisfied  of  these  difficulties,  as  he  cer- 
tainly will  be,  by  looking  into  their  causes,  very  much  vexatious 
and  ruinous  litigation  will  be  prevented,  and  intelligent,  worthy 
men  left  unmolested,  to  pursue  untroubled  their  important  profes- 
sional dufies. 

The  doubts  and  uncertainties  that  constantly  embarrass  the 
medical  and  surgical  practitioner  are  easily  understood  and  appre- 
ciated by  the  intelligent;  and  the  errors  and  mistakes  to  which 
they  are  thus  unavoidably  exposed  may  well  furnish,  in  many 
important  cases,  a  satisfactory  explanation  and  excuse  for  any 
unfavorable  results,  which,  upon  their  face,  may  appear  to  involve 
want  of  skill  or  knowledge. 

But  there  are  still  other  equally  formidable  difficulties  connected 
with  the  practice  of  surgery — difficulties  which,  if  properly  un- 
derstood and  appreciated,  will  tend  to  place  in  a  truer  light  the 
strong  and  generally  unknown  barriers  that  are  constantly  con- 
fronting those  who  pursue  the  art. 

The  great  difficulties  and  want  of  certainty  in  the  practice  of 
medicine  and  surgery,  resolve  themselves  into  an  apparent  want 
of  that  uniformity  so  beautiful  and  remarkable  in  other  branches 
of  physical  science.  This  is  felt  particularly  in  the  effect  of 
the  predisposing  causes  already  mentioned,  to  wit:  morbid  action, 
the  course  of  actual  disease,  and  in  the  effect  of  external  cause — 
our  confidence  in  science  depending  upon  the  facility  with  which 
we  discover  the  true  relations  of  things,  and  our  confidence  in 
their  uniformity.  In  those  sciences  in  which  we  have  to  deal 
with  inanimate  matter,  the  confidence  is  easily  attained ;  but  in 
medicine,  particularly,  and  often  in  surgery,  there  is  great  diffi- 
culty in  tracing  effects  to  their  true  causes,  and  causes  down  to 
their  true  effects. 

There  being  so  many  latent  influences — some  of  which  have 


.      ELEMENTARY   DIFFICULTIES    OF   MEDICINE.  45 

been  pointed  out — operating  to  vary  and  complicate  disease,  just 
and  exact  results  are  arrived  at  very  slowly,  if  at  all,  and  a  long 
course  of  observation  and  experiments  must  precede  even  a  tol- 
erable degree  of  certainty.  There  is  great  danger,  too — and  it 
is  often  felt — that  imperfect  and  hasty  conclusions  will  be  an- 
nounced as  facts. 

When  a  statement  of  facts  has  once  been  boldly  set  forth  from 
a  high  quarter,  it  may  take  a  long  time,  and  a  laborious  course 
of  experiments  and  observation  to  correct  the  errors.  Herein  is 
the  great  difference  between  the  science  of  medicine  and  those 
purely  physical ;  as,  in  the  latter,  a  single  experiment  may  be 
sufficient  to  overturn  the  most  plausible  hypothesis,  or  establish 
one  that  was  before  only  matter  of  conjecture.  After  we  have 
ascertained,  by  a  course  of  long,  close  and  logical  reasoning,  and 
careful  experiment,  the  true  tendencies  and  relations  of  things, 
all  are  constantly  liable  to  disappointment,  when  we  attempt  to 
produce  certain  results  by  bringing  these  tendencies  into  opera- 
tion. This  arises  from  the  silent  operation  of  those  numerous 
causes  referred  to,  that  vary  and  qualify  the  result,  and  not  easily 
detected.  ABERCROMBIE,  from  whom  the  substance  of  the  above 
is  taken,  says,  a  source  of  uncertainty  in  the  practical  art  of 
medicine,  is  the  difficulty  we  find  in  applying  to  new  causes  the 
knowledge  we  have  acquired  from  observation.  This  application 
is  made  upon  the  principle  of  either  experience  or  analogy. 

"  We  are  said  to  proceed  upon  experience  when  the  circum- 
stances in  the  new  case  are  the  same  as  in  those  cases  from  which 
our  knowledge  was  derived.  When  the  circumstances  are  not  the 
same,  but  similar,  we  proceed  upon  analogy,  and  our  confidence 
in  the  result  is  weaker  than  when  we  proceed  on  experience. 
The  more  numerous  the  points  of  resemblance  are,  the  greater  is 
our  confidence;  because  it  approaches  the  more  nearly  to  that 
which  we  derive  from  experience ;  and  the  fewer  the  points  of 
resemblance,  the  confidence  we  feel  is  more  and  more  diminished. 
When,  in  the  practice  of  medicine,  we  apply  to  new  cases  the 
knowledge  acquired  from  others,  which  we  believe  to  have  been- 


40  MALPRACTICE. 

of  the  same  nature,  the  difficulties  are  so  great  that  it  is  doubtful 
whether,  in  any  case,  we  can  properly  be  said  to  act  upon  experi- 
ence, as  we  do  in  other  departments  of  science ;  for  we  have  not 
the  means  of  determining  with  certainty  that  the  condition  of  the 
disease,  the  habit  of  the  patient,  and  all  the  circumstances  that  enter 
into  the  character  of  the  affection,  are  precisely  the  same  in  the 
two  cases ;  and  if  they  differ  in  any  one  particular,  we  can  not 
be  said  to  act  from  experience,  but  from  analogy.  The  difficulties 
and  sources  of  uncertainties  that  meet  us  at  every  stage  of  such 
investigations  are,  in  fict,  so  great  and  numerous,  that  those  who 
have  had  the  most  extensive  opportunities  of  observation  will  be 
the  first  to  acknowledge  that  our  pretended  experience  must,  in 
general,  sink  into  analogy,  and  even  our  analogy  too  often  into 
conjecture."1 

In  a  science  encumbered  with  so  many  sources  of  error  and 
difficulties,  it  is  obvious  what  cause  we  have  for  proceeding  with 
the  utmost  caution,  and  for  advancing  from  step  to  step  with  the 
greatest  circumspection.  It  is  in  consideration  of  these  peculiar 
difficulties,  that  beset  and  encompass  the  business  of  the  surgeon 
and  physician,  that  all  enlightened  courts  have  held  that  but 
ordinary  skill  and  care  shall  be  required  of  them,  and  that  mere 
errors  of  judgment  shall  be  overlooked,  if  the  general  character 
of  treatment  has  been  honest  and  intelligent ;  and  that  the  result 
of  the  case  shall  not  determine  the  amount  of  responsibility  to 
which  he  is  to  be  held ;  and  that  when  unskillfulness  or  negligent 
treatment  of  his  patients  is  charged  to  a  physician  or  surgeon,  it 
is  not  enough  to  show  that  he  has  treated  his  patient  in  that 
mode,  or  used  measures  which,  in  the  opinion  of  others,  though 
medical  men,  the  case  required,  because  such  evidence  tends  to 
prove  errors  of  judgment,  for  which  the  defendant  is  not  respon- 
sible, as  much  as  it  goes  to  prove  a  want  of  reasonable  skill  and 
care,  for  which  he  may  be  responsible.  Alone,  it  is  not  evidence 
of  the  latter;  and,  therefore,  the  party  must  go  further,  and 

1  Abercrombie  on  the  Intellectual  Power,  page  299. 


*       ELEMENTARY    DIFFICULTIES    OF   MEDICINE.  47 

prove,  by  other  evidence,  that  the  defendant  assumed  a  character, 
and  undertook  to  act  as  a  physician,  without  the  education,  know- 
ledge and  skill  which  entitled  him  to  act  in  that  capacity.1 

It  is  not  our  purpose  to  enter  into  a  defense  of  the  medical 
profession,  but  simply  to  present  a  fair  exhibit  of  the  difficulties 
that  surround  a  great  profession,  and  with  which  it  has  constantly 
to  contend — a  profession  that  has  for  its  object  and  end  the 
accomplishment  of  great  good,  assu.iging  of  pain,  physical  and 
mental,  the  lengthening  out  of  a  precarious  life — a  profession 
that  has  produced,  in  all  ages,  able,  self-sacrificing  men,  and  now 
has  within  it,  as  noble  examples  of  moral  and  intellectual  man- 
hood— possessing  substantial  knowledge  and  practical  skill — as 
ever  blessed  our  earth. 

We  are  anxious  that  the  attorney  should  give  the  subject  his 
attention;  that  he  may  weigh  well  the  matter,  and  understand  it; 
that  he  may  not,  unwittingly,  charge  the  medical  man,  and  hold 
him  responsible  for  not  doing  perfectly  what  is  absolutely  impos- 
sible, and  that  he  may  assist  the  court  in  protecting  the  innocent, 
as  well  as  intelligently  to  punish  the  guilty. 

Let  the  heaviest  judgment  of  the  law  be  visited  on  those  who 
ignorantly,  drunkenly  and  grossly  trifle  with  health  and  human 
life.  If  the  practitioner  has  assumed  the  responsible  duties  of 
the  medical  profession  without  reasonable  and  ordinary  skill ;  or, 
having  those  qualifications,  neglects  to  apply  them  as  he  should, 
with  care  and  diligence,  under  an  enlightened  judgment,  properly 
exercised ;  in  other  words,  if  he  has  neglected  the  proper  treat- 
ment, from  ignorance,  inattention  and  carelessness,  let  him  sufler : 
there  will  be  found  nothing  in  these  pages  to  screen  him. 


1  Leighton  v.  Sargent,  7  Foster  Ecps.  475. 


Idir*  SEE  APPENDIX,  page  586,  for  full  Notes  on  this  Chapter. 


CHAPTER  III. 

WHAT  DEFINITE  KNOWLEDGE  IS  POSSIBLE  AND  ESSENTIAL  FOR  THE 
PHYSICIAN  AND  SURGEON. 

HAVING  considered  some  of  the  impossibilities  of  medical  and 
surgical  practice — others  will  be  noticed  hereafter — it  may  be 
well  to  examine  to  what  extent  the  surgeon's  knowledge  must 
reach — that  which  can  and  should  be  known  to  the  practical 
medical  man.  The  courts  hold  that  the  surgeon  and  physician 
must  be  master  of  that  degree  of  knowledge  which  is  reasonably 
within  their  reach.  To  this  end  a  minute  and  correct  understand- 
ing of  the  real  character  and  importance  of  Inflammation  is  essen- 
tial. It  lies  at  the  threshold  of  practical  surgery ;  and,  without 
this  knowledge,  the  surgeon  must  grope  his  way  in  a  labyrinth 
of  doubt  and  darkness,  and  stumble  when  he  should  walk 
confidently. 

What  the  terrible  power  of  steam  is  to  the  engineer,  inflamma- 
tion is  to  the  surgeon.  From  it  he  has  to  apprehend  much  of 
the  danger  to  which  he  is  exposed,  and  without  it  he  can  do 
nothing.  It  is  the  great,  mysterious  and  ever  present  power  of 
nature,  that  immediately  springs  into  living  activity,  when  any 
part  of  the  physical  economy  is  invaded  by  an  injury  from  with- 
out, or  an  enemy  within. 

After  the  mechanics  connected  with  surgery  are  attended  to — 
which,  indeed,  is  generally  the  less  difficult  part — if  the  surgeon 
does  not  act  coincidently  and  understandingly  with  this  influence, 
he  had  much  better  fah1  back  and  let  this  great  elementary  power 
of  pathology  do  the  work.  The  result  will  be  better  than  if 
there  is  a  blind,  hap-hazard  intermeddling  on  the  part  of  an 
ignorant  surgeon. 

(48) 


NECESSARY    KNOWLEDGE.  49 

Too  many  surgeons  seem  to  think  the  important  thing  upon 
which  a  surgical  reputation  depends,  is  the  manual  dexterity  with 
which  an  operation  is  performed.  While  this  should  be  well 
done,  it  is  not  all-important.  A  thorough  understanding  of  the 
nature  and  tendency  of  inflammation,  so  as  to  both  use  and  con- 
trol it  in  the  treatment  of  surgical  cases,  is  more  important. 
The  unfortunate  results  that  so  often  arise  in  surgical  cases,  fre- 
quently depend  upon  a  neglect  or  misunderstanding  of  the  gen- 
eral inflammation,  and  that  of  the  part  affected,  both  before  and 
after  the  operation.  It  should  not  be  put  aside  for  the  showy 
and  imposing  parts  of  the  practice,  which  are  too  apt  to  lead  the 
student,  in  particular,  in  that  direction,  to  the  neglect  of,  not  only 
inflammation,  but  other  things,  in  which,  with  the  correct  treatment 
of  inflammation,  consist  the  true  glory  and  usefulness  of  the  pro- 
fession. A  distinguished  surgeon  has  said,  "Not  to  cut,  but 
cure,  should  be  the  motto  of  the  surgeon." 

The  great  operations  are  but  seldom  performed  by  the  sur- 
geon— the  great  mass  of  operators  never  performing  one  of  the 
first  class — while  the  common  accidents  are  of  daily  occurrence, 
in  the  treatment  of  which  the  minor  handicraft  of  the  profession 
is  constantly  brought  into  requisition.  In  the  exercise  of  these 
duties  properly,  the  necessity  of  great  operations  is  avoided. 
How  much  better  to  substitute  simple  remedies  at  the  right  time, 
applying  the  principles  of  hygiene  to  the  general  system — that 
the  disease  may  be,  in  its  origin,  controlled,  pain  and  danger 
avoided,  health  and  comfort  restored — than  by  the  neglect  of 
these,  encourage  severe  arid  bloody  operations.  While  the  sur- 
geon should  be  ready,  at  a  moment's  warning,  to  amputate,  in  a 
skillful  manner  a  crushed  limb,  which  obviously  can  not  be  saved, 
by  reason  of  the  extent  of  the  injury,  and  for  want  of  vitality; 
which,  if  left,  must  inevitably  take  with  it  the  body,  and  thus 
succeeds  in  saving  life,  he  has  just  ground  for  self-congratulation, 
and  may  well  be  proud  of  his  art,  and  say  that  an  important 
thing  hris  been  done.  But  when,  in  the  case  of  an  injury  less 

severe,  there  is  a  doubt  whether  or  not  the  limb  may  be  enabled 
4 


50  MALPRACTICE. 

to  resist  the  threatened  gangrene — when  he  hesitates  not  to  give 
the  patient  the  benefit  of  that  doubt — when,  by  great  patience, 
care  and  skill,  he  arranges  the  mangled  fragments  of  bone,  con- 
tused nerves,  muscles  and  torn  blood  vessels,  in  their  proper 
places,  retains  them  by  proper  apparatus,  affording  due  support, 
and  without  too  much  pressure,  regulating  the  play  of  the  gen- 
eral circulation,  controlling  the  inflammation,  assisting  the  efforts 
of  the  vis  vitce,  thus  averting  both  local  and  general  disaster,  and 
bringing  the  healthful  action  of  the  system  to  complete,  though 
it  may  be  slowly,  the  process  of  cure;  and  when,  ultimately,  a 
thorough  and  permanent  success  crowns  such  patient  and  anxious 
labors,  surely  there  is  much  greater  cause  for  being  proud  of  his 
noble  profession,  while  his  own  reputation,  in  the  estimation  of  all 
the  intelligent,  has  been  raised  a  hundred  fold.  A  discerning 
.public  will  not  fail,  in  the  end,  to  award  a  higher  and  truer  meed 
of  praise  in  this  case  than  the  former. 

The  progress  of  surgery  has  been,  and  ever  will  be,  character- 
jzed  by  a  corresponding  decrease  of  its  operations,  both  in 
amount  and  severity.  The  highest  qualification  of  a  surgeon  con- 
sists in  such  a  knowledge  of  all  the  resources  of  this  important 
department  of  medicine,  as  will  enable  him  to  weigh  and  deter- 
mine, with  a  high  degree  of  certainty  when  called  to  step  between 
life  and  death, — between  deformity  and  be.mty — in  his  own  scale, 
all  the  circumstances  of  the  case,  and  to  rightly  determine,  at 
once,  whether  there  shall  be  the  stern  appeal  to  the  knife,  or 
whether  the  application  of  milder  means  will  not  bring  about  a 
happier  result, — the  restoration  of  the  patient  to  health,  with  a 
perfect  body.  The  knowledge  which  determines  the  necessity  of 
a  severe  operation,  is  far  more  valuable  and  far  more  difficult  of 
attainment,  than  that  mechanical  knowledge  which  will  qualify 
the  surgeon  to  perform  it,  after  the  important  question  as  to  its 
absolute  necessity  is  settled.  To  determine  the  first — as  to  the 
necessity  of  an  operation — the  best  qualities  of  the  mind  and 
heart  are  called  into  operation,  in  thoroughly  analyzing  all  the 
elements  that  enter  into  the  case — the  vital  forces  involved  in 


NECESSARY    KNOWLEDGE.  51 

the  economy — the  condition,  mental  and  physical,  of  the  patient, 
etc.,  and  in  arriving  at  a  true  and  safe  result.1  He  must  have 
self-possession,  judgment,  honor  and  independence — attributes 
that  should  carry  him  above  those  influences  that  would  render 
him  an  instrument  in  the  hands  of  others  less  competent  than 
himself  to  foretell  the  consequences  of  a  rash  appeal  to  an  un- 
warranted and  dangerous  operation,  for  the  glory  of  it.  "  The 
surgeon  is  the  agent  through  whose  instrumentality  are  carried 
into  action  the  highest  principles  of  scientific  medicine — princi- 
ples demanding  a  knowledge  of  the  soundest  anatomy,  physi- 
ology and  pathology.  He  wields  a  power  more  grand,  more 
critical,  and,  at  the  same  time,  more  terrible  to  hum  inity,  than 
the  practitioner  of  any  other  branch  of  the  profession  of  medi- 
jine.  The  ordinary  physician's  authority  and  prestige  is,  indeed, 
limited,  when  contrasted  with  that  of  the  surgeon ;  his  daily 
routine  seems  dull  and  tedious,  while  that  of  the  surgeon,  when 
legitimately  exercised,  is  bold,  startling  and  alarming :  the  errors 
of  the  physician  are  not,  in  general,  dangerous,  while  those  of  the 
surgeon  are  fatal.  Life  and  death  hang  suspended  on  his  effort. 
Health,  recovery,  death  and  deformity  are  the  issue  of  his  hand."2 

To  be  a  complete  master  of  anatomy,  physiology  and  pathol- 
ogy, is  indispensable  to  the  surgeon,  when  we  consider  him  in 
his  tri-fold  office  of  using  the  knife  and  other  instruments, 
reducing  dislocations,  or  adjusting  and  managing  fractures. 

There  never  was  a  more  general  or  more  baseless  and  ridicu- 
lous delusion  than  that  some  persons  are  born  natural  surgeons — 
•"  natural  bone-setters."  It  has  been  but  a  very  few  years  since 
it  was  thought  necessary  to  go  fifty  miles,  in  case  of  a  disloca- 
tion or  fracture,  after  one  of  these  celebrities.  Even  at  this  day, 
in  some  parts  of  the  country,  this  error  still  prevails.  It  is  a 
remnant  of  the  almost  universal  belief j  anciently,  that  "  la  medi- 
cine est  venue  immediatement  de  Dieu"  What  is  said  in  Eccle- 


1  Miller's  Practice  of  Surgery,  pages  20,  21. 
1  Skey's  Operative  Surgery,  p.  6. 


62  MALPRACTICE. 

siasticus  was  taken  literally,  viz.:  "God  created  the  physician  and 
the  physic,  and  that  he  giveth  science  to  man,  and  that  'tis  he 
that  healeth  man,"  etc.1  Importance  was  given  to  this  class  of 
surgeons  when,  in  fact,  there  was  no  surgery.  Not  over  two 
hundred  years  ago  was  it  that  surgery  assumed  a  true  and  definite 
shape  ;  even  within  that  time,  the  treatment  of  the  most  simple 
incised  wound  was  cruel  in  the  extreme.  Instead  of  bringing 
the  edges  of  the  wound  together,  for  the  purpose  of  union  by  the 
first  intention  —  as  is  the  practice  at  the  present  day  —  the  wound 
was  opened  and  filled  with  dressings,  acid  balsams,  tents,  ashes, 
sugars,  leaden  tubes,  etc.,  to  force  the  wound  into  a  painful  suppu- 
ration, which  was  considered  necessary  to  a  cure.  When  a  part 
was  nearly  or  partially  severed,  instead  of  being  united,  it  was 
cut  away,  even  to  every  flap  of  skin  ;  every  open  wound  was 
plugged  up,  lest  it  should  heal.  Tents,  seatons,  leaden  canulas 
and  strong  injections,  were  among  the  chief  implements  of  sur- 
gery. The  lips  of  a  wound  must  not  be  put  together.  If  the  open- 
ing was  not  large  and  free,  it  was  the  rule  to  dilate  it,  but  never 
with  a  knife  :  it  was  torn  open  with  a  sort  of  forceps  ;  thus  the 
most  simple  wounds  were  forced  into  sloughing  ulcers.  Long 
tents  were  thrust  into  the  wounds  of  the  neck  and  face  until  they 

w 

were  extended  enormously.  Compound  fractures  were  treated  by 
thrusting  the  dressings  between  the  ends  of  the  bones. 

At  one  time,  all  wounds  were  treated  by  the  process  of  sucking. 
In  the  army  the  drummers  were  the  suckers.  When  a  duel  was 
fought  —  which  was  very  common  two  hundred  years  ago  —  each 
party  would  take  with  him  his  sucker.  His  skill  consisted  in 
immediately  applying  his  mouth  to  the  wound,  and  continuing  to 
suck  and  spit  out  the  blood  until  it  stopped,  when  he  would  chew 
up  a  wad  of  paper  and  introduce  it  into  the  wound.  Surgery 
has,  therefore,  but  just  emerged  from  barbarism  and  superstition  ; 
yet  it  has  made  gigantic  strides  within  the  last  few  years.  With 
equal  progress  for  the  balance  of  this  century,  and  other  shades 


s,  xxxvi  :  12. 


NECESSARY    KNOWLEDGE.  53 

of  chicanery  and  deception,  that  still  embarrass  the  art,  will  be 
swept  away. 

This  desired  result  will  be  attained  by  the  maintenance  of  a 
high  standard  of  anatomical,  physiological  and  pathological 
knowledge  in  the  profession;  and  when  this  is  not  found  in  u  suf- 
ficient degree  in  the  practitioner  to  insure  safe  and  thorough 
treatment  to  the  patient,  the  party  should  be  brought  to  answer 
for  any  evil  results  of  such  ignorance,  in  a  court  of  justice,  where 
no  amount  of  credit  will  be  given  to  natural  bone-setters,  or  any 
other  class  of  pretenders  for  intuitive  knowledge,  aside  from  com- 
mon sense. 

No  man  can  become  thoroughly  acquainted  with  the  science 
of  anatomy  without  practical  dissections  on  the  subject.  He 
may  be  a  good  theorist  without  it,  but  he  can  not  be  a  ready, 
practical  practitioner ;  and  ho  will  be  very  liable,  at  some  stage 
-of  his  life,  to  be  awakened  to  his  defective  education,  by  having 
to  respond,  in  damages,  for  Malpractice.  It  being  essential  to 
the  surgeon  to  understand  anatomy — and  it  being  impossible  for 
him  to  obtain  that  necessary  knowledge  without  access  to  the 
subject  for  dissection — it  is  evidently  wrong  for  a  Legislature  or 
a  court  to  punish  the  ignorant  surgeon,  if  it  has  thrown  around 
the  dead  body,  in  all  cases,  such  barriers  and  penalties  as  will, 
in  effect,  prevent  dissection,  by  placing  the  materiel  beyond  his 
reach. 

The  court  should  either  permit  the  student  of  medicine  and 
surgery  to  obtain  all  the  subjects  they  may  require,  under  proper 
restrictions,  which  need  not  at  all  cut  off  a  supply  from  the  right 
and  proper  quarter,  or  it  should  cease  to  punish  those  who  are 
guilty  of  Malpractice,  by  reason  of  the  great  difficulty  in  obtain- 
ing subjects  for  dissection.  There  is  not  a  lawyer,  judge  or  juror, 
who  would  not  rather  have  a  surgeon  attend  him,  in  case  of  a 
fractured  leg,  who  he  knew  had  thoroughly  examined  and  stud- 
ied all  the  parts,  injured  and  uninjured,  on  the  dead  subject,  even 
if  he  knew  such  surgeon  had  to  steal  the  subject  upon  which  he 
obtained  his  knowledge. 


54  MALPRACTICE. 

Why,  then,  will  this  influential  class  throw  the  least  obstruction- 
in  the  way  of  the  student's  obtaining,  in  a  proper  manner,  all  the 
subjects  necessary  ?  It  is  a  matter  of  congratulation  that  a  great 
change  has  transpired  on  this  subject  within  a  few  years,  among 
the  more  intelligent;  and  the  prejudice  so  general  not  long  ago, 
is  in  many  places  giving  way,  and  all  the  facilities  necessary 
are  afforded  for  obtaining  materiel  for  dissections  to  the  student  of 
anatomy ;  still,  in  many  places,  it  is  almost  an  impossibility  to 
obtain  such  materiel  without  running  a  risk  of  property,  liberty,, 
and  even  life. 

A  correct  and  thorough  knowledge  of  physiology  and  pathol- 
ogy, is  also  based  upon  dissections.  Plates  and  books  do  not, 
and  it  is  impossible  that  they  should,  make  that  clear  impression 
upon  the  mind,  that  the  examination  of  the  natural  parts  will 
leave :  being  seen  by  the  eye,  and  examined  under  the  micro- 
scope, the  effect  is  lasting. 

The  foregoing  remarks  are  designed  more  particularly  for  the 
legal  profession.  Their  truth  is  well  understood  by  all  intelligent 
medical  men. 


SEUT"  SEE  APPENDIX,  page  587,  for  full  Notes  on  this  Chapter* 

NOTE.—"  No  presumption  of  the  absence  of  proper  skill  and  attention  arises 
from  the  mere  fact  that  the  patient  does  not  recover,  or  that  a  complete  cure  is 
not  effected.  God  forbid  that  the  law  should  apply  any  rule  so  vigorous  and 
unjust  as  that  to  the  relation  and  responsibilities  arising  out  of  this  noble  and 
humane  profession.  On  the  part  of  the  patient,  it  is  his  duty  to  conform  to  the 
necessary  prescription  and  treatment,  if  they  should  be  such  as  surgeons  of  ordin- 
ary skill  and  care  would  adopt  or  sanction  ;  and  if  he  will  not,  the  surgeon  or 
physician  is  not  responsible  for  injury  resulting  therefrom."  Hare  v.  Reese, 
7  Phil.,  138. 

Dr.  Mottsays:  "Fractures  of  radius  within  two  inches  of  the  wrist,  when 
treated  by  the  most  eminent  of  surgeons,  are  of  very  difficult  management  so  as 
to  avoid  deformity ;  indeed  more  or  less  deformity  may  occur  under  the  treatment 
of  the  most  eminent  surgeons,  and  more  or  less  imperfection  in  the  motion  of  t  ae 
wrist  or  radius  is  very  apt  to  follow  for  a  longer  or  shorter  time;  even  when  the 
fracture  is  well  cured  an  anterior  prominance  at  the  wrist  or  near  it  will  some- 
times result  from  swelling  of  the  soft  parts." 


CHAPTER  IV. 

MALPRACTICE  FROM  AMPUTATION. 

i 

NINE-TENTHS  of  all  the  cases  of  Malpractice  that  come  before 
the  courts  for  adjudication,  arise  either  from  the  treatment  of 
amputations,  fractures  or  dislocations.  It  becomes  necessary, 
therefore,  to  examine  these  subjects,  to  ascertain  if  possible,  why 
it  is,  that  in  these  particular  departments,  the  surgeon  is  so  liable 
to  encounter  litigation,  and  also  to  determine  what  he  can  be 
justly  expected  to  do,  and  what  may  be  impossible  for  him  to 
accomplish. 

The  latest  and  ablest  surgical  knowledge,  as  held,  illustrated 
and  practiced  by  those  who  are  best  acquainted  with  the  present 
state  of  the  science,  must  be  appealed  to.  They  are  the  acknowl- 
edged judges  of  the  practicable  and  the  impracticable,  .in  the 
practice  of  surgery.  The  members  of  the  legal  profession,  ab- 
sorbed, as  they  are,  in  the  study  of  their  own  infinite  field  of 
investigation,  belonging  to  their  own  great  science,  have  not 
turned  aside  to  explore  another — the  medical — equally  inter- 
esting and  important ;  but  this  they  must  do,  if  they  would  pre- 
pare themselves  to  mete  out  justice,  both  to  the  ignorant  patient 
and  the  enlightened  and  honorable  physician,  or  surgeon,  and 
follow  the  dishonest  charlatan,  or  the  recklessly  ignorant  quack, 
with  the  merited  penalties  of  the  law.  The  standard  of  ordinary 
skill,  which  is  required  of  every  physician  and  surgeon,  it  will  be 
borne  in  mind,  is  that  degree  and  amount  of  knowledge  and 
science, which  the  leading  authorities  have  pronounced  as  the  result 
of  their  researches  and  experience,  up  to  the  time,  or  within  a  rea- 
sonable time  before  the  issue  or  question  to  be  determined  is 
made.  It  is  not  enough  Cor  a  surgeon  to  plead  that  his  treat- 

(55) 


66  MALPRACTICE. 

ment  was  that  taught  him  by  the  ablest  members  of  the  profes- 
sion, and  the  best  schools  twenty-five  years  ago ;  because,  in  a 
science  that  is  advancing  with  the  rapidity  of  medicine  and  sur- 
gery— that  is,  by  observation  and  experience,  yearly,  and  almost 
daily,  correcting  errors  in  practice,  and  abandoning  hoary-headed 
theories,  the  fallacy  of  which  has  become  apparent,  upon  which 
the  practice  has  heretofore  been  based — that  is  receiving  auxiliary 
agencies  from  all  the  rapidly  advancing  sister  sciences, — there  will 
be  new  facilities  afforded  in  practice  year  by  year,  and  errors 
constantly  exploded.  The  authority,  therefore,  that  was  at  a  pre- 
vious day  considered  good,  and  upon  which  the  courts  acted,  may 
not,  at  this  time,  be  admitted  as  the  present  standard  of  knowl- 
edge required  of  the  physician  and  surgeon. 

In  no  department  of  surgery,  perhaps,  has  there  been  a  greater 
change  and  advancement  in  treatment,  than  in  that  of  amputa- 
tions. An  amputation  that  would  have  been  justified  by  the 
rules  of  surgery,  and  the  operator  protected  in  court,  twenty-five 
years  ago,  or  even  within  less  time  than  that,  would  now  be  repu- 
diated by  the  best  authority,  and  the  operator  justly  chargeable 
with  ignorance  and  unskillfulness. 

Old  physicians  and  surgeons  can  not,  therefore,  rely  with  safety 
upon  their  elementary  education,  and  what  they  may  have  learned 
in  practice.  It  is  absolutely  important,  for  the  protection  of 
the  patient  as  well  as  of  the  surgeon,  if  he  assumes  the  respon- 
sibility of  performing  an  operation  fraught  with  so  great  interest, 
that  he  should  make  use  of  every  reasonable  means  of  knowing 
what  is  considered  the  best  treatment  at  the  time  of  the  opera- 
tion— not  what  would  have  been  the  proper  course  twenty  years 
ago.1  A  medical  man  can  not,  with  any  safety  or  propriety, 
practice,  year  after  year,  without  keeping  himself  informed  as 
to  the  improvements  of  his  science,  especially  if  he  practice 
surgery,  involving  amputations,  from  which  so  many  law  suits 
result,  and  which  are  so  fatal  to  the  patient. 

1  McCandless  v.  McWha,  22  Penu.  269. 


MALPRACTICE   FROM    AMPUTATION.  57 

The  surgical  statistics  of  Malgaigue,  Lawrie,  Simpson,  Phillips 
and  others,  show  that  nearly  one-half  of  the  patients  in  th° 
severer  forms  of  amputation  die;  thus  completely  showing  the 
great  severity  and  danger  of  the  operation,  connected,  as  it  is, 
with  original  disease,  or  shock  to  the  general  system. 

So  valuable  is  a  leg  or  arm  to  its  possessor,  that  all  the  cir- 
cumstances attending  its  loss  are  always  critically,  and  often 
savagely,  reviewed,  as  soon  as  relief  from  pain  and  danger  will 
permit ;  and  in  proportion  to  the  consequences  involved,  is  the 
subsequent  danger  of  trouble  to  the  surgeon.  Amputations  are 
now  much  less  frequent  than  formerly,  and  the  true  surgeon  is 
beginning  to  understand  that  there  is  more  honor  and  skill  dis- 
played in  saving  a  limb  than  in  cutting  it  off  He  is  impressed 
with  the  fact  that  the  dismemberment  of  a  limb  is  his  last  re- 
source, and  an  evidence  of  his  weakness — his  inability,  by  the 
resources  of  his  art,  to  save  it. 

The  change  that  has  taken  place  on  this  subject,  and  the  true 
Joctrine  at  present,  is  so  clearly  and  truly,  set  forth  by  a  very 
eminent  surgeon  of  England,  (Mr.  Skey,)  we  quote  what  he  has 
ID  say  upon  the  subject.  He  says :"  Strange  is  it,  that  this 
1  ower  of  mutilating  the  human  form — of  incapacitating  the  indi- 
\  idual  for  a  large  number  of  the  duties  of  life,  and  of  estranging 
Urn  from  former  occupations,  which,  in  some  form  or  other,  alien- 
afces  him  from  the  society,  from  the  amusements,  at  least  from  the 
I  ursuits  of  his  fellow-men — should  be  classed  among  the  most 
triumphant  deeds  of  the  operating  surgeon,  while  it  practically 
illustrates,  at  the  expense  of  his  patient,  the  poverty  and  the 
incompetency  of  his  art.  There  is  no  operation  in  the  whole 
range  of  surgery,  compared  to  that  of  amputation,  that  should 
claim  the  previous  exercise  of  an  equal  amount  of  skill,  of 
patience,  or  the  decision  on  which  demands  so  large  an  amount  of 
conscientiousness.  The  most  experienced  are  yet  students.  As 
years  roll  on,  cases  of  improvement  occur  in  our  history,  which 
teach  us  that  the  advanced  knowledge  of  this  year  would  have 
Tendered  unnecessary  the  operation  of  the  last.  Within  my  own 


58  MALPRACTICE. 

recollection,  the  operating  theater  of  St.  Bartholomew's  Hospital 
was  the  scene  of  weekly  mutilations  of  the  frame  by  the  knife,  while, 
at  the  present  day,  a  little  more  than  a  quarter  of  a  century,  such 
operations  are  reduced  to  less  than  half  of  their  former  number. 

Whence  this  improved  and  improving  condition  of  the  pauper 
occupants  of  thib  single  hospital  ?  In  the  advance  of  scientific 
knowledge — in  the  increased  power  of  contending  against  dis- 
ease— in  a  fuller  reliance  on  nature's  power  and  disposition  to 
cure  it ;  in  other  words,  in  a  higher-classed  surgery ;  and,  I  may 
add,  in  an  advanced  sympathy  with  the  sufferings  of  humanity ; 
and  not  the  least  in  this  category,  is  the  newly-acquired  rank  of 
curative  surgery,  which  has  all  but  exploded  the  false  eclat  inci- 
dental to  the  functions  of  the  operating  surgeon,  recklessly  re- 
sorted to  on  all  occasions,  having  a  show  of  reason.  The  most 
discreditable  operation  in  surgery  is  an  amputation.  It  might 
almost  be  expected  that  dexterity  in  its  performance  implies  a 
frequent,  and,  if  so,  an  unnecessary  resort  to  it.  The  important 
fact  should  be  ever  kept  in  mind,  that  there  is  no  uniform  standard 
of  curative  power:  a  limb  that  is  amputated  in  one  institution  is 
preserved  in  another.  Experience  in  the  treatment  of  disease, 
greater  care,  a  patient  watchfulness,  a  high-minded  humanity, 
which  identifies  the  sufferings  of  others  with  our  own — these  are 
the  resources  of  the  first-rate  surgeon,  and  the  safeguard  of  the 
patient.  How  often  do  we  lose  sight  of  the  necessity  of  an  am- 
putation in  the  dexterity  of  its  performance,  and  forget  the  suf- 
fering and  deprivation  of  the  patient,  in  our  admiration  of  the 
manipulative  skill  of  the  operator!  A  decision  on  the  question 
of  amputation  of  a  limb,  in  a  large  number  of  examples,  de- 
mands the  exercise  of  the  very  highest  resources  of  surgical 
skill;  and  there  is,  to  us,  no  better  evidence  of  the  high  stand- 
ard of  surgical  superiority,  in  any  institution,  than  the  unfre- 
quency  of  the  resort  to  amputation. 

The  operation  of  amputation  is  resorted  to  both  in  the  case  of 
injury  and  of  disease ;  and  in  both,  the  removal  of  the  limb  is,  at 
the  present  day,  comparatively  rare.  The  resources  of  an  im- 


MALPRACTICE   FROM   AMPUTATION.  59 

proved  art  are  successfully  applied  to  the  treatment  of  disease; 
while  we  are  taught  by  experience  and  by  reason  to  place  a  fuller 
reliance  on  nature  for  the  cure  of  injury.  Let  us  hope  that  we 
have  not  reached  the  final  goal  of  our  improvement,  but  that  we 
rather  extend  our  confidence  yet  further  in  the  resources  of 
nature,  trusting  that  the  advancing  knowledge  of  the  present 
enlightened  age  may  yet  tell  profitably  for  the  unfortunate  vic- 
tims of  disease,  hitherto  deemed  incurable,  and  limit  our  resort 
to  an  operation,  the  frequency  of  which  has  ever  stamped  the 
records  of  barbaric  surgery,  and  which  yet  exists  as  the  oppro- 
brium of  the  art.  Let  us  not  forget  that  the  aim  of  surgery  is 
to  preserve,  and  not  to  destroy  ;  and  that  more  real  superiority  is 
exhibited  ia  the  successful  application  of  skill  that  retains  a  limb, 
than  in  the  dexterity,  however  great,  with  which  it  is  severed 
from  the  rest  of  the  body. 

In  order  to  justify  an  amputation,  whether  of  a  part  or  of  the 
whole  of  a  limb,  the  question  of  recovery  by  other  means  must 
be  placed  beyond  all  reasonable  doubt.  Every  resource  compat- 
ible with  the  means  of  the  patient,  should  be  exhausted ;  and  a 
consultation  with  one  or  more  eminent  surgeons  of  the  neighbor- 
hood be  held;  and  in  the  case  of  the  proposed  removal  of  a 
limb,  the  necessity  of  this  final  crisis  should  be  clearly  estab- 
lished. Then,  and  not  till  then,  should  amputation  be  resorted 
to.  Presuming  that  every  expedient  that  skill  can  suggest 
has  been  adopted,  and  without  success,  the  amputation  may  be 
performed. 

It  is  not  intended,  however,  in  any  remarks  that  have  been 
made,  to  underrate  the  importance  of  this  operation,  to  which 
thousands  are  indebted  for  a  prolonged  life  of  activity  and  use- 
fulness to  their  fellow-creatures,  or  to  undervalue  the  dexterity  of 
its  performance;  and  so  long  as  these  pretensions  to  a  superior 
merit  follow  in  their  legitimate  position,  the  higher  attributes 
which  should  ever  attach  to  the  curative  power,  they  may  be, 
unhesitatingly,  acknowledged  to  be  not  only  valuable,  but  to  be 
indispensable  to  the  reputation  of  a  first-rate  surgeon. 


€0  MALPRACTICE. 

Amputations  are  requisite  to  preserve  life  from  the  conse- 
quences both  of  disease  and  injury.  Any  disease  that  is  incur- 
able, and  the  presence  of  which  in  the  system  is  a  source  of 
such  evil  or  discomfort  as  to  render  the  loss  of  the  limb  desir- 
able or  beneficial  to  the  patient,  folly  justifies  the  operation.  It  is 
important,  however,  to  distinguish  between  the  warrant  of  a  neces- 
sity emanating  from  physical,  and  that  from  moral  causes. 

The  latter,  known  under  the  term  amputation  of  expediency — 
in  the  French  school,  amputations  de  complaisance — are  justly 
regarded  with  an  eye  of  doubt  and  suspicion,  and  should  be  un- 
dertaken with  much  hesitation. 

Under  examples  of  disease,  resort  is  had  to  amputation  of  a 
limb  incases  of  incurable  disorganizations  of  joints,  in  gangrene 
of  the  extremities,  in  malignant  growths  or  tumors,  in  copious 
hemorrhage,  the  source  of  which  can  not  be  discovered,  in  exten- 
sive necrosis  of  bone,  in  a  constitution  reduced  to  a  state  of 
great  weakness;  and  occasionally  in  incurable  diseases  of  the 
skin.  In  fact,  it  is  resorted  to  in  any  form  of  disease  of  the 
extremities,  which,  being  either  very  difficult  or  impossible  to  cure, 
draws  so  largely  on  the  circulation,  and  hence  on  the  nervous  sys- 
tem, as  to  endanger  the  present  or  future  health  of  the  person  thus 
affected.  In  examples  of  injury  from  violence,  it  is  proper  to 
resort  to  amputation  in  severe  compound  fractures,  in  greatly 
comminuted  fractures,  in  which  the  limb  has  been  crushed  under 
the  application  of  a  heavy  weight,  and  in  extreme  cases  of  irre- 
ducible dislocations,  and,  lastly,  in  distortions,  comprising  opera- 
tions of  expediency. 

It  may  be  well  to  analyze  these  various  forms  of  apparent 
warrant  for  amputations. 

First,  with  regard  to  the  disease  of  a  joint,  the  most  important 
question  that  arises,  is  that  of  incurability.  This  fact  must  be 
clearly  established  by  incontrovertible  evidence;  every  means 
and  appliance  that  science  and  art  can  command,  should  h  ive 
been  exhausted,  without  permanent  benefit  to  the  afflicted  joint, 
unless  there  was  immediate  danger.  The  judicious  resort  to 


MALPRACTICE   FROM   AMPUTATION.  61 

absolute  rest,  local  depletion,  proportioned  in  quantity  to  the 
strength  of  the  person,  counter-irritation,  in  its  various  forms, 
local  vapor  baths,  must  have  failed  to  mitigate  the  evil.  Dis- 
ease has  so  far  triumphed  the  joint  is  destroyed,  suppuration  has 
been  established  within  its  cavity,  the  ligaments  have  separated 
from  the  bone,  the  cartilage  is  partially  or  wholly  absorbed,  and 
the  ends  of  the  bone  palpably  grate  against  each  other.  Is  this 
condition  of  the  joint  a  warrant  for  amputation,  without  further 
reliance  on  the  resources  of  nature  ?  Certainly  not.  Joints  are 
especially  sensitive  to  the  consequences  of  injury  or  violence,  so- 
long  as  they  possess,  and  can  exercise  the  prerogative  of  health. 
The  joint,  destroyed  by  the  absorption  of  its  cartilage  and  the 
separation'  of  its  ligaments,  no  longer  possesses  such  powers; 
and  though  lost  forever  as  a  movable  articulation,  may  still  retain 
a  useful  existence  as  an  immovable  one.  Its  peculiar  suscepti- 
bility being  exhausted,  which  in  health  renders  the  exposure  of 
its  cavity  at  all  times  dangerous,  the  cavity,  distended  with  puri- 
form,  or  whey-like  fluid,  should  be  opened  by  a  free  incision  into 
it,  and  the  contents  evacuated.  Tractability  of  the  diseased 
actions  will  often  follow  this  comparatively  simple  expedient, 
and  the  limb  be  saved.  This  operation  has,  on  sundry  occasions, 
been  performed  with  great  advantage,  where  it  has  been  deemed 
advantageous  and  proper  to  try  and  save  a  limb  that  would 
otherwise  have  been  removed.  In  the  year  1838,  the  leg  of  a 
young  woman  was  about  to  undergo  amputation,  on  account  of 
a  disease  of  the  knee  joint,  of  many  months'  duration.  She  had 
suffered  a  good  deal  of  pain  while  the  diseased  actions  were  going 
on  in  the  joint,  and  no  doubt  was  entertained  that  the  cartilage 
was  destroyed ;  obscure  fluctuation  was  felt  on  each  side  of  the 
patella.  I  requested  permission  to  take  charge  of  the  case,  and 
passed  a  lancet  into  the  joint,  on  the  inner  side  of  the  patella, 
through  which  about  an  ounce  of  whey-like  fluid  escaped,  greatly 
to  her  relief  from  suffering.  Within  a  week  I  made  a  second 
opening,  with  the  same  result,  and  this  I  repeated  six  or  seven 
times ;  all  pain  then  subsided,  anchylosis  followed,  and  the  girf. 


62  MALPRACTICE. 

left  the  hospital,  at  the  expiration  of  six  months,  with  a  stiff 
knee,  but  with  a  useful  limb.  The  same  result  followed  this 
treatment,  in  the  case  of  a  man  I  attended  with  Mr.  Lobb,  of 
Aldersgate  street,  whose  knee  had  been  previously  condemned 
to  amputation. 

Mr.  Gay  has  also  adopted  this  practice,  with  considerable  suc- 
cess, in  several  joints,  in  the  knee,  the  ankle  and  the  elbow.  All 
these  cases  consisted  in  a  diseased  condition  of  the  synovial 
membrane,  with  abscess,  such  as,  indeed,  would  formerly  have 
appeared  to  justify  the  question  of  amputation.  In  each  case 
large  incisions  were  made  into  the  joint  with  perfect  success,  and 
anchylosis  was  the  result. 

Matter,  penned  up  within  the  joint,  is  a  source  of  great  irri- 
tation at  all  times,  and  although  its  presence  would,  perhaps, 
hardly  justify  the  indiscriminate  resort  to  puncture — for  I  am 
by  no  means  convinced  that  the  process  of  recent  suppuration  is 
incompatible  with  perfect  recovery  of  the  articulation — yet  in 
the  last  stage  of  the  disease,  in  which  the  joint  is  thoroughly  dis- 
organized, there  can  be  no  valid  objection  to  the  adoption  of  this 
treatment,  for  it  is  obvious  that  no  harm  can  accrue  to  the  struc- 
ture of  a  joint,  an  incision  into  which  would  be  in  no  greater 
degree  injurious  than  in  any  other  region  of  the  body.  I  be- 
lieve that  a  free  incision  may  be  often  made  with  advantage,  even 
when  matter  is  not  penned  up.  The  size  of  the  incision  into  the 
cavity  of  the  joint  should  depend  on  the  more  or  less  advanced 
condition  of  the  disease.  In  early  suppuration,  especially  if  the 
result  of  accident,  or  consequent  on  the  removal  of  loose  car- 
tilages, of  which  I  have  seen  several  recent  examples,  a  mod- 
-erate-sized  opening  will  suffice. 

Grating  of  the  opposite  surfaces  of  a  joint  is  often  urged  as  an 
excuse  for  removing  by  amputation.  But  the  destruction  of  the 
cartilages,  although  one  stage  in  the  diseased  actions,  advancing 
toward  disorganization,  is  equally  to  be  regarded  as  a  condition 
-essential  to  recovery  by  anchylosis,  and,  if  taken  by  itself,  forms 
no  justification  at  all  for  removal,  to  say  nothing  of  th3  possi- 


MALPRACTICE   FROM    AMPUTATION.  63 

bility  of  the  subsequent  investment  over  the  surfaces  of  the  bone 
of  ivory  deposit,  as  it  is  called. 

In  recommending  the  frequent  adoption  of  this  practice,  prior 
to  amputation,  for  diseased  joints,  I  am  aware  that  I  may  be  met 
by  objections,  founded  on  the  prevalent  opinion,  that  the  strumous 
affection  of  the  joints,  to  which  the  term  white-swelling  is  ab- 
surdly applied,  (in  deference  to  an  antiquated  pathology,)  is  in- 
susceptible of  the  adhesive  action  we  term  anchylosis. 

But  I  am  acquainted  with  no  evidence  that  warrants  this  con- 
clusion, supposing  pains  be  taken  to  remove  all  sources  of  local 
irritation,  and  to  invigorate  the  system ;  though  1  do  not  pre- 
tend to  say  that  such  cases  give  promise  of  success  with  the 
former.  I  have  unbounded  faith  in  nature's  own  resources,  and 
in  her  good  will  to  remedy  the  ill  consequences  of  disease ;  and 
I  have  no  doubt  that,  under  circumstances  not  unfavorable,  a 
sufficiently  strong  union  by  anchylosis,  or  by  a  fibrous  substi- 
tute, would  reward  the  surgeon  for  his  experiment. 

With  these  considerations  before  us,  I  may  venture  to  con- 
clude that  the  amputation  of  a  limb  for  a  disease  of  a  joint  ought 
to  be  deemed  a  rare  operation,  and,  more  especially,  when  disor- 
ganization has  resulted  from  synovial  disease. 

Secondly.  In  the  case  of  gangrene  of  a  limb,  amputation  is 
occasionally  resorted  to.  In  the  dry  gangrene  of  old  age,  the 
early  resort  to  removal  by  the  knife  is  contra-indicated  by  the  ex- 
perience of  all  good  surgeons :  the  very  nature  of  the  disease  pre- 
cludes the  hope  of  recovery  from  the  operation,  if  performed 
duiing  the  period  of  progressive  advancement.  Under  these  cir- 
cumstances, we  have  no  alternative  but  that  of  waiting  the  grad- 
ual separation  of  the  dead  parts,  and  then  sawing  through  the 
bone,  and  making  the  best  stump  compatible  with  the  difficulties 
of  the  case.  Should,  however,  the  diseased  actions  subside,  and 
give  place  to  a  regenerated  power  in  the  circulating  system  of 
the  extremity — indicated  by  a  positive  separation  of  the  dead 
from  the  living  parts,  and  by  the  presence  of  healthy  granula- 
tion— there  can  be  no  objection  to  the  operations.  These  objec- 


64  MALPRACTICE. 

tions  to  the  operation  do  not,  of  course,  apply  to  that  form  of 
gangrene  resulting  from  traumatic  causes,  in  which  all  the  struc- 
tures of  the  limb  are  involved,  and  in  which  the  circulation  is 
vigorous,  and  competent  to  the  adhesive  process. 

Thirdly.  The  same  remark  may  be  made  in  cases  of  malignant 
diseases;  in  many  forms  and  localities  of  which,  with  such 
tenacity  do  they  cling  to  the  system,  once  invaded,  that  a  ques- 
tion might  be  raised  as  to  their  expediency,  especially  it'  evi- 
dence be  found  on  inquiry,  of  the  existence  of  disease  about  the 
trunk ;  unless  the  disease  be  entirely  insulated  by  amputation,  at 
a  distance  above  it,  and  often  if  apparently  insulated,  the  opera- 
tion will  prove  futile.  The  discovery  of  chloroform  is,  perhaps, 
the  best  justification. 

Fourthly.  Copious  hemorrhage,  the  sources  of  which  can  not 
be  discovered.  This  description  of  injury  was  formerly  the  fruit- 
ful source  of  amputation  of  a  limb,  which  has  happily  been 
rendered  a  rare  occurrence,  consequent  on  a  more  intimate  ac- 
quaintance with  the  relative  anatomy  of  the  arterial  system. 
Modern  surgery  presents  so  many  resources,  even  beyond  that 
of  tying  the  wounded  vessel,  that  the  highest  discredit  would 
attach  to  any  surgeon,  at  all  familiar  with  the  use  of  the  knife, 
who  should  resort  to  the  removal  of  a  limb,  before  he  had  ex- 
plored and  examined  every  possible  source  of  hemorrhage.  Still, 
we  can  not  contend  against  the  evil  consequences  of  the  irregular 
distribution  of  vessels ;  and  should  hemorrhage  continue  in  such 
a  case,  after  the  main  artery  of  the  limb  was  tied  as  closely  as 
possible  to  the  place  of  injury,  and  in  spite  of  pressure  and  posi- 
tion, then,  undoubtedly,  we  may  be  justified  in  resorting  to  am- 
putation. 

Fifthly.  Extensive  necrosis  of  bone  in  a  greatly  weakened 
constitution.  It  is  not  easy  to  imagine  a  case  of  necrosis,  at  the 
present  day,  that  would  justify  the  amputation  of  a  limb ;  be- 
cause, if  a  patient  be  so  greatly  reduced  to  a  condition  of  weak- 
ness, as  to  preclude  the  direct  removal  of  the  dead  bone,  a  fortiori, 
he  can  not  be  in  a  condition  to  justify  amputation.  The  resort 


MALPRACTICE   FROM    AMPUTATION.  65 

to  amputation,  in  cases  of  diseased  bones,  has  become  still  more 
rare  since  the  introduction  of  chloroform,  which  has  exercised  a 
most  beneficial  influence  over  the  treatment  of  this  and  all  sim- 
ilar diseases.  Patients  formerly  lay  in  our  public  hospitals  for 
six  or  nine  months,  or  longer,  for  the  purpose  of  undergoing  the 
process  of  removal  of  the  dead  bone  by  internal  agency,  who 
now,  under  the  influence  of  that  invaluable  agent,  are  brought  at 
once  to  the  operating  theater.  In  the  course  of  last  summer,  I 
removed  a  considerable  piece  of  the  tibia  from  a  patient  in  St. 
Bartholomew's  Hospital,  who,  I  believe,  prior  to  the  introduction 
of  chloroform,  would  have  occupied  a  bed  for  many  months,  be- 
fore he  could  hope  to  have  been  in  a  condition  to  have  resumed 
his  occupation. 

Sixthly.  Ulceration  of  the  skin,  under  circumstances  of  pecu- 
liar obstinacy,  have  occasionally  appeared  to  warrant  the  recourse 
to  the  amputating  knife.  In  such  cases  it  would,  I  conceive,  be 
more  consistent  with  scientific  surgery  to  cauterize  the  surface, 
than  to  amputate  the  affected  limb :  better  to  expose  the  mus- 
cles to  the  chance  of  their  consequent  destruction,  were  that 
necessary,  than  to  remove  the  disease  by  amputation. 

Seventhly.  Perhaps  the  most  frequent  warrant  for  the  ampu- 
tation of  a  limb  is  that  of  severe  compound  fracture,  or  other 
form  of  local  injury,  by  which  its  structure  is  so  extensively  torn 
or  destroyed,  or  likely  to  be  destro}red,  in  the  necessary  conse- 
quences of  the  injury,  as  to  point  to  the  great  probability  that 
the  constitutional  powers  of  the  individual  will  fail  in  the  contest 
and  death  result.  Under  such  circumstances  we  take  off  the  limb. 
Unhappily,  however,  we  possess  no  certain  gauge  for  vital  power, 
and  we  can  arrive  at  no  certain  knowledge  of  the  full  extent  of 
the  injury  done ;  yet,  it  must  be  allowed,  that  limbs  are  preserved 
at  the  present  day  under  frightful  injuries,  that  would  have  been 
formerly  amputated  without  a  moment's  hesitation.  It  would  be 
needless  to  attempt  a  general  rule,  unless  we  could  obtain  a  per- 
fect knowledge  of  the  extent  of  the  injury;  and  this  is  often 

impossible.     Scarcely  any  amount  or  form  of  fractured   bone, 
5 


66  MALPRACTICE. 

alone,  would  justify  the  immediate  resort  to  the  knife,  if  taken 
singly,  even  supposing  the  bone  fractured  extensively  into  a 
large  joint,  for,  in  such  a  case,  although  anchylosis  of  the  joint 
would  probably  occur,  it  would  prove  a  lesser  evil  than  that  of 
amputation.  Superadded  to  a  compound  or  comminuted  fracture 
of  bone,  the  injury  may  be  rendered  yet  more  serious  by  the 
extensive  laceration  of  the  muscles.  In  considering  this  latter 
condition,  much  will  depend  on  the  kind  of  laceration — whether 
the  muscles  are  merely  cut  asunder,  or  whether  contused  and 
torn;  and  whether  this  injury  involves  a  few  only,  or  a  majority 
of  the  muscles  of  the  limb.  Again,  we  must  examine  with  great 
care  the  condition  of  the  vessels.  Is  the  main  trunk  whole,  we 
might  ask,  in  the  supposed  case  of  fracture  of  the  thigh ;  or,  in 
that  of  the  leg,  is  the  posterior  tibial  artery  torn?  This  artery 
may  generally  be  felt  by  careful  examination  behind  the  mal- 
leolus  internus.  Is  the  anterior  tibial  involved?  The  dorsal 
artery  of  the  foot  is  generally  perceptible.  Is  the  limb  colder 
than  its  fellow  ?  Is  the  temperature  considerably  lower  than  the 
rest  of  the  body?  If  so,  probably  one  or  more  arteries  are 
divided.  What  is  the  condition  of  the  nerves?  Does  sensibility 
extend  to  the  toes?  If  not,  probably  the  nerve  is  divided  also. 
Under  such  circumstances,  we  may  obtain  a  better  ground  for 
forming  a  judgment  on  the  issue,  by  making  a  slight  extension 
of  the  limb,  and  by  replacing  its  lacerated  structures  in  some  ap- 
proach to  their  natural  relations.  If  the  evidence  of  the  integ- 
rity of  both  artery  and  nerve  yet  fail,  and  the  sinking  tempera- 
ture of  the  limb  and  the  loss  of  sensibility  continue  or  increase, 
we  have  no  alternative  but  amputation. 

Human  nature  is  never  without  its  weakness.  The  judge 
upon  the  bench  has  his  prejudices  and  his  leanings,  for  human 
judgment  can  never  become  perfect ;  and  so  it  must  happen  in 
the  balance  to  be  weighed  by  the  surgeon,  between  retention  and 
amputation  of  a  limb,  that  some  grain  of  self  may  be  involved. 
This  weakness  is  not  discreditable  to  the  individual,  but  to  the 
species. 


MALPRACTICE   FROM    AMPUTATION.  67 

The  eclat  of  an  operation,  the  natural  and  commendable  desire 
to  do  great  deeds,  the  desire  to  avail  our8elves  of  the  opportunity 
of  instruction  to  others,  or  the  still  more  commendable  motive  of 
insuring  recovery,  by  a  hasty  sacrifice  of  the  integrity  of  the 
frame;  these,  and  various  other  agents,  are  unconsciously  inter- 
woven in  the  decisions  of  the  surgeon,  as  to  his  conduct  and 
management  of  a  case.  If  against  such  influences  as  these,  a 
higher  standard  of  professional  superiority  were  established  as 
OUT  guide,  based  on  the  soundest  physiology,  and  a  yet  sterner 
view  of  the  moral  responsibility  of  our  decision — if  it  should 
ever  become  the  boast  of  our  profession,  not  that  we  have  ampu- 
tated so  many  limbs,  but  that  we  have  rescued  so  many  from  the 
knife,  then  I  can  not  but  express  my  conviction  that  the  resort 
to  this  operation  would  be  yet  more  rare  than  it  is  even  in  the 
present  era  of  enlightened  surgery. 

If  a  doubt  exists  in  the  mind  of  the  surgeon,  on  the  necessity 
of  an  immediate  amputation,  there  is  less  objection  to  giving  the 
patient  the  chance  of  recovery,  by  postponing  the  operation, 
especially  in  cases  of  injury  that  admit  of  subsequent  amputation 
below  the  knee,  than  in  subjecting  him  to  the  consequences  of 
unnecessary  mutilation. 

Death  is,  comparatively,  unfrequent  in  consequence  of  ampu- 
tation below  the  knee ;  while,  to  any  ordinary  mechanic,  the  loss 
•of  a  leg  is  as  fatal  to  his  future  employment  as  that  of  a  portion 
of  the  thigh  in  addition.  Mr.  ABERNETHY  entertained  a  strong 
objection  to  amputation  for  compound  fracture  in  the  neighbor- 
hood of  the  ankle  joint.  Possessing  a  greater  than  the  average 
confidence  of  the  profession,  in  nature's  power  and  good  will  to 
•cure  it,  Mr.  ABERNETHY  showed  his  own  superiority,  not  in  his 
own  greater  curative  power,  but  in  his  more  profound  insight  into, 
and  reliance  upon  that  of  nature. 

Much  has  been  said  about  the  necessity  of  immediate  ampu- 
tation after  compound  fracture,  etc.  The  argument  for  this  ne- 
oessity  is  founded  on  the  evil  of  a  second  shock  to  the  system ; 
but  this  principle,  although  good  in  the  abstract,  is  often  mis- 


68  MALPRACTICE. 

applied,  and  as  often  violated,  even  by  what  is  called  immediate 
amputation.  The  principle  originated  from  the  surgical  practice 
of  the  battle-field,  in  which  a  wounded  soldier  is  brought  from 
the  ranks  and  placed  under  the  hands  of  the  surgeon,  either  im- 
mediately or  within  a  short  time  of  the  occurrence  of  the  wound ; 
but  the  case  is  different,  both  in  private  and  in  hospital  practice, 
in  which  some  hours  from  the  period  of  the  accident  may  elapse 
before  the  arrival  of  the  surgeon ;  and  I  am  inclined  to  believe 
that,  for  the  most  part,  the  condition  of  a  person  with  severe  com- 
pound fracture  is  as  favorable  for  amputation  after  the  expiration 
of  thirty-six,  or  even  forty-eight  hours,  as  at  the  expiration  of  three 
or  four.  The  principle  itself  is  sound,  if  strictly  obeyed ;  but  its 
rigid  observance  is  incompatible  with  the  ordinary  duties  and 
occupations  of  the  surgeon,  whether  in  private  or  in  hospital 
practice;  and  I  consider  that  the  postponement  of  all  doubtful 
cases  of  severe  injury  to  one  or  two  days'  experiment,  is  more 
consistent  w'Jh  the  principles  of  a  higher-classed  surgery,  than 
the  loose  jedience  to  a  law,  which,  however  abstractly  good,  is 
incompatible  with  the  necessary  requisitions  of  professional  life. 
This  argument  obtains  additional  force  from  the  fact  that  the 
error,  if  any,  is  committed  on  the  side  of  humanity. 

Eighthly.  We  may  be  compelled  to  resort  to  amputation  in 
extreme  cases  of  irreducible  dislocations ;  but  to  justify  the  ap- 
peal to  the  knife,  every  means  should  have  been  exhausted,  both 
ordinary  and  extraordinary.  The  failure  of  the  usual  means  of 
extension,  should  only  dictate  the  resort  to  unusual  means.  We 
must  sacrifice  the  joint  for  the  sake  of  the  limb,  as  we  sacrifice 
the  limb  for  the  preservation  of  life.  The  joint  should  be  care- 
fully surveyed,  for  the  purpose  of  ascertaining  the  nature  of  the 
difficulty  and  its  precise  locality.  Anatomical  knowledge  of  the 
joint  is  here  invaluable.  The  cause  of  these  difficulties  in  the 
reduction  usually  depend  on  the  displacement  of  some  partly-torn 
ligament,  or  tendon,  distorted  from  its  course  during  the  acci- 
dent, but  far  more  generally  on  the  former.  Whatever  be/  the 
obstructing  agent — be  it  ligament,  be  it  tendon,  or  be  it  muscle — 


MALPRACTICE   FROM    AMPUTATION.  69 

it  should  be  divided  by  the  means  of  a  fine-bladed  knife,  passed 
down  to  it.  If  necessary  to  this  important  object,  the  skin 
should  be  dissected  off,  to  an  extent  sufficient  to  expose  the 
cause  of  obstruction;  but  this,  of  course,  is  better  avoided,  if 
possible.  If  this  principle  be  fully  carried  out — if  the  surgeon 
resolve  to  sacrifice  the  joint,  or  rather  to  risk  the  destruction  of 
the  joint,  as  a  movable  articulation — amputation  will  be  rarely 
resorted  to  in  cases  of  irreducible  dislocation. 

With  regard  to  operations  for  distortion,  etc.,  or  operations 
of  expediency,  as  they  are  somewhat  inappropriately  called, 
I  have  only  to  remind  the  readers  that  they  are  often  followed  by 
serious,  and  even  dangerous  results,  as,  indeed,  are  all  large  opera- 
tions, performed  during  a  condition  of  the  nervous  system  un- 
prepared for  the  shock,  that  they  should  rarely,  if  ever,  be 
recommended,  and  not  always  resorted  to  on  importunity."1 

So  important  is  the  subject  of  amputation  considered,  as  con- 
nected with  Malpractice,  that  the  views  of  one  of  the  ablest  and 
most  successful  of  British  surgeons  have  been  here  given  at  con- 
siderable length.  The  statements  are  so  clearly  and  compactly  • 
expressed,  and  at  the  same  time  so  true,  that  they  can  not  fail  to 
place  the  subject  in  its  true  light.  The  line  is  drawn  in  so  dis- 
tinct a  manner,  all  physicians,  surgeons  and  lawyers,  can  at  once, 
from  the  rules  laid  down,  see  some  of  the  reasons  for,  or  the  im- 
proprieties of,  an  operation  of  this  magnitude,  when  the  facts  are 
once  fairly  before  them. 

Unskillfulness  can  not  be  charged  upon  the  surgeon  who  fol- 
lows these  highly  humane,  enlightened  and  progressive  views. 
It  is  an  easy  and  tempting  matter  to  perform  heavy  operations 
like  amputations.  The  surgeon  has,  therefore,  much  reason  to 
be  cool,  cautious  and  deliberate,  on  such  occasions,  remembering 
that  it  requires  more  ability  and  medical  skill  to  save  a  limb  than 
to  cut  it  off;  as  it  requires  a  higher  degree  of  legal  knowledge  in 
a  lawyer  to  gain  a  difficult  case  than  to  lose  it. 

1  Skey's  Operative  Surgery,  page  291.    ' 


70  MALPRACTICE. 

Although  this  is  so  plain,  upon  reflection,  it  is  still  almost  the 
universal  sentiment,  that  he  who  has  amputated  a  limb  is  a  better 
surgeon  than  he  who  has,  by  assiduity,  patience  and  skill  saved 
one ;  and  the  former  is  not  so  likely  to  be  followed  by  a  law  suit- 
though  he  does  not  always  escape — whether  right  or  wrong,  and 
will  realize,  generally,  an  extended  practice,  by  reason  of  the  bold- 
ness of  his  operation ;  while  the  latter  is  in  danger  of  litigation, 
without  the  benefit  of  a  reputation,  should  he  escape  an  action 
for  damages. 

ADJUDICATED  CASES. 

The  reported  cases  on  the  subject  of  Malpractice  are  few,  as 
they  but  seldom  reach  the  Supreme  courts. 

A  leading  case,  on  some  points  connected  with  amputations, 
may  be  found  in  Howard  v.  Grover.1  This  was  one  of  the  casea 
against  the  defendant  for  alleged  Malpractice  as  a  surgeon,  and 
was  tried  upon  a  plea  of  the  general  issue,  WHITMAN,  C.  J.,  pre- 
siding, at  the  November  Term  of  this  Court,  1847.  The  jury 
returned  a  verdict  in  favor  of  the  plaintiff,  and  assessed  the  dam- 
ages at  $2025. 

The  defendant  moved  for  a  new  trial,  because  the  damages 
were  excessive,  and  because  the  verdict  was  against  the  evidence. 
The  defendant  afterward  filed  another  motion  to  have  the  verdict 
set  aside,  because  he  had,  since  the  verdict  was  rendered,  discov- 
ered new  and  important  evidence,  the  existence  of  which  wa& 
unknown  to  him  at  the  time  of  the  trial,  to  wit :  That  the  perios- 
teum would  reproduce  itself. 

The  testimony  given  at  the  trial  was  all  reported,  and  certified 
to  be  a  true  report  by  the  presiding  judge. 

The  motions  were  argued  by  Codman,  for  the  defendant ;  and 
by  Howard  fy  Shipley,  for  plaintiff'. 

The  counsel  for  the  defendant  cited  Rev.  Stat.  c.  123,  sec.  1  j 
17  Pick.  471;  12  Johns.  R.  234;  3  Pick.  385;  4  T.  R.  C87j 
5  Taunt.  280. 

1  Howard  v.  Grover,  28  Maine  R.  97. 


ADJUDICATED    CASES.  71 

For  the  plaintiff  were  cited  the  following :  17  Maine  R.  247  ; 
Cowp.  230;  2  Wils.  244;  4  T.  R.  687,  cited  for  defendant;  3 
Pick.  113  and  379;  7  Pick.  85;  9  Johns.  45;  9  Wend.  470; 
16  Maine  R.  187  ;  22  Maine  R.  252. 

The  opinion  of  the  court  (SHIPLEY,  J.,  concurring  only  in  the 
result,)  was  drawn  up  by 

WELLS,  J. — This  case  was  tried  at  the  November  Term,  1847, 
and  a  verdict  was  rendered  for  the  plaintiff  for  $2025.  The  de- 
fendant was  charged  with  Malpractice  as  a  surgeon ;  and  he  moves 
for  a  new  trial  because  of  the  discovery  of  new  evidence,  and  of 
excessive  damages. 

The  gentlemen,  by  whose  testimony  the  alleged  newly-dis- 
covered facts  can  be  shown,  all  resided  in  Portland,  where  the 
trial  was  had.  No  measures  were  taken  to  procure  their  attend- 
ance. By  the  use  of  ordinary  diligence,  the  defendant  could 
have  ascertained  the  facts  to  which  they  are  able  to  testify.  If 
his  knowledge  of  surgery  was  less  extensive  than  theirs,  by  in- 
quiring of  them,  the  information  which  they  possessed  could  have 
been  obtained.  If  any  witness  had  stated  that  the  periosteum  had 
not  the  power  of  reproduction — although  no  such  evidence  ap- 
pears in  the  abstract  furnished  to  the  court — information  on  this 
subject  could  have  been  presented  by  consulting  works  on  sur- 
gery, or  the  gentlemen  by  whom  it  now  appears,  such  an  error 
could  be  corrected. 

Parties  are  expected  to  exercise  due  diligence  in  preparing 
their  causes  and  in  producing  testimony,  and  the  omission  to  do 
so  does  not  lay  the  foundation  for  a  new  trial. 

There  is  nothing  in  this  part  of  the  case,  which  would  au- 
thorize us  in  disturbing  the  verdict 

Are  the  damages  excessive,  to  such  a  degree  as  to  require 
the  interference  of  this  court  ? 

It  is  always  a  delicate  undertaking  to  set  aside  a  verdict  on 
account  of  excess  of  damages,  especially  in  cases  where  the  rules 
by  which  they  are  to  be  measured  are  vague  and  uncertain.  The 
power  to  do  it  is  recognized  in  many  cases,  to  some  of  which  we 


72  MALPRACTICE. 

refer:  Chambers  v.  Caulfield,  6  East.  245;  Coffin  v.  Coffin,  4 
Mass.  R.  1;  Bodwell  v.  Osgood,  3  Pick.  379;  Worster  v.  The 
Canal  Bridge,  16  Pick.  541 ;  Blunt  v.  Little,  3  Mason,  102, 
which  was  an  action  for  a  malicious  prosecution — the  verdict  be- 
ing for  $2000  damages,  was  directed  to  be  set  aside,  unless  the 
plaintiff  should  remit  $500  of  his  damages;  Wiggin  v.  Coffin,  3 
Story's  R.  1,  which  was  also  an  action  for  malicious  prosecution. 
In  the  case  of  Jacobs  v.  Bangor,  16  Maine  R.  187,  it  is  said  that 
when  there  is  no  certain  measure  of  damages,  the  verdict  of  a 
jury  is  not  to  be  set  aside  for  excessive  damages,  unless  there  is 
reason  to  believe  that  they  "  were  actuated  by  passion,  or  by  some 
undue  influence,"  perverting  their  judgment.  It  is  unnecessary 
to  refer  to  that  class  of  cases  where  verdicts,  in  relation  to  prop- 
erty and  injuries  to  it,  have  been  set  aside  and  new  trials  granted. 

Honest  and  well-meaning  men  are  liable  to  be  led  astray  by 
strong  feelings  of  sympathy,  arising  from  a  narration  of  pain- 
ful and  protracted  sufferings,  and  while  thus  excited,  often  in- 
flict upon  the  author  of  them  a  severer  punishment  than  he 
deserves. 

It  is  not  alleged  against  the  defendant  that  he  was  ignorant 
of  the  duties  of  his  profession,  or  that  he  willfully  and  intention- 
ally departed  from  them.  It  is  true,  that  his  conduct  was  not 
guided  with  sufficient  deliberation,  and  he  relied  with  a  confidence 
too  strong  upon  his  own  judgment. 

The  plaintiff  had  been  lame  for  several  years ;  his  thigh  bone 
was  diseased.  It  is  not  denied  that,  in  1843,  an  amputation  was 
necessary,  to  arrest  the  progress  of  the  disease.  In  that  year 
the  defendant  performed  two  operations  upon  the  plaintiff's  thigh, 
by  amputation.  The  first  was  unobjectionable  as  to  the  place  of 
amputation,  but  the  bone  was  left  protruded  too  far  from  the  mus- 
cular parts. 

The  ground  of  complaint  is,  principally,  for  the  second,  that  there 
was  an  error  in  not  cutting  off  the  limb  nearer  to  the  body,  and 
want  of  care  and  skill  in  the  mode  of  execution.  But  it  is  not 
shown  that  the  plaintiff  sustained  any  material  injury ;  the  mere 


ADJUDICATED   CASES.  73 

mode  of  execution,  although  it  did  not  accord  with  the  most  cor- 
rect and  careful  practice. 

But  as  soon  as  the  second  amputation  took  place,  it  was  ap- 
parent that  the  bone  was  infected  above  the  place  of  amputation. 
The  plaintiff  could  not  then  bear  another  operation.  The  caries 
continued  to  increase  in  virulence,  until  the  whole  of  the  thigh 
bone  was  removed  from  its  socket,  by  another  surgeon. 

The  alleged  fault  of  the  defendant  consisted  in  an  error  of 
judgment,  in  not  removing  more  of  the  diseased  limb.  It  is  by 
no  means  certain,  that  the  removal  of  a  larger  portion  would 
have  been  effectual.  When  the  first  operation  took  place,  the 
remaining  bone  appeared  to  be  perfectly  sound ;  but  in  a  short 
time  the  disease  manifested  itself  in  such  a  fearful  manner  as  to 
require  a  second  amputation.  It  seems,  therefore,  highly  proba- 
ble that  the  whole  bone  was  diseased,  and  that  nothing  short  of 
its  entire  removal  would  have  saved  the  life  of  the  plaintiff!  If 
such  was  the  fact,  it  was  of  little  importance  at  what  precise  part 
of  the  limb,  below  the  hip  joint,  the  operation  was  performed  ;  yet 
damages  against  him  have  been  rendered,  not  because  he  failed  to 
remove  the  whole  limb,  but  that  he  should  have  removed  a  few 
more  inches  of  it. 

It  was  the  inevitable  fate  of  the  plaintiff  to  be  a  cripple  for 
life,  without  any  agency  of  the  defendant.  The  want  of  judg- 
ment of  the  latter  may  have  protracted  his  sufferings,  and  caused 
an  increase  of  expenses  and  loss  of  time. 

The  defendant  is  not  liable  for  a  want  of  the  highest  degree 
of  skill,  but  for  ordinary  skill  j1  and,  of  course,  only  for  the  want 
of  ordinary  care  and  ordinary  judgment. 

The  practice  of  surgery  is  indispensable  to  the  community, 
and  while  damages  should  be  paid  for  negligence  and  carelessness, 
surgeons  should  not  be  deterred  from  the  pursuit  of  their  profes- 
sion by  intemperate  and  extravagant  verdicts.  The  compensa- 
tion to  surgeons  in  the  country  is  small,  in  comparison  with  what 

1  Sear  v.  Prentice,  8  East.  347 ;  Chitty  on  Cont.  165. 


74  MALPRACTICE. 

is  paid  in  cities  for  similar  services ;  and  an  error  of  judgment  is 
visited  with  a  severe  penalty,  which  takes  from  one  a  large  share 
of  the  surplus  earnings  of  a  long  life. 

We  are  constrained  to  believe  that  the  jury  must  have  been 
actuated  "by  some  undue  influence,"  and  that  justice  requires  a 
reduction  of  the  verdict.  But  we  have  so  much  reluctance  to 
interfere  with  it,  that  we  will  allow  it  to  remain  if  the  plaintiff 
will  remit  $500  of  it.  If  this  is  not  done,  the  verdict  will  be 
set  aside,  and  a  new  trial  granted." 

This  case  shows  how  far  the  courts  have  gone  in  holding  sur- 
geons responsible  for  errors  of  judgment  merely. 

The  court  admits  that  "the  alleged  fault  of  the  defendant  con- 
sisted in  an  error  of  judgment  in  not  removing  more  of  the  limb;" 
and  that  "it  is  by  no  means  certain  that  the  removal  of  a  larger 
portion  would  have  been  effectual,"  and  yet  allows  a  judgment  of 
$1500  to  stand  against  the  defendant. 

This  case  goes,  in  this  respect,  further  than  the  authorities 
warrant.  After  the  defendant  exercised  a  reasonable  degree  of 
skill,  under  the  guidance  of  an  ordinary  judgment — and  it  seems 
he  had  more  than  an  ordinary  judgment,  from  his  previous  opera- 
tion— he  was  not  liable  for  the  result,  however  unfortunate. 


SEE  APPENDIX,  page  587,  for  full  Notes  on  this  Chapter. 

NOTE. — In  Adler  v.  Buckley,  1  Swan  (Term.)  p,  69,  a  suit  for  fees,  th* 
Court  say:  ''If  the  operation  was  of  service  to  the  patient,  and  he  did  well 
and  recovered,  the  surgeon  was  entitled  to  compensation,  though  it  was  not  per- 
formed with  the  highest  degree  of  skill,  or  might  have  been  performed  more 
skillfully  by  others.  It  is  certain  that  the  highest  degree  of  skill  is  not  necessary. 
The  surgeon  undertakes  for  a  due  and  proper  degree  of  skill  and  diligence  in  his 
profession,  and  for  the  employment  of  these  he  is  entitled  to  a  reasonable  degree 
of  compensation.  His  right  to  recover  does  not  depend  upon  the  fortune  of  the 
case,  whether  it  be  good  or  bad,  but  upon  the  skill,  diligence  and  attention 
bestowed.  On  the  contrary,  if  the  patient  suffer  injury  by  reason  of  the  want 
of  skill  and  diligence  in  the  operation  or  treatment,  or  from  euch  derives  no 
benefit  therefrom,  in  either  case  the  surgeon  is  not  entitled  to  any  compensation, 
but  is  liable  in  damages  for  the  maltreatment  and  the  negligence."  In  this  case 
the  amputation  was  performed  with  a  butcher  knife  and  hand-saw. 


CHAPTER  T. 

MALPRACTICE  IN  FRACTURES  AND  DISLOCATIONS. 

FROM  the  treatment  of  fractures  and  dislocations,  have  also- 
arisen  a  frightful  brood  of  law  suits.  As  in  the  case  of  amputa- 
tions and  dislocations,  much  error  exists  in  the  popular  or  unpro- 
fessional mind,  as  to  what  the  surgeon  can  really  do  in  the  treat- 
ment of  fractures.  It  has  been  generally  supposed,  if  the  patient 
is  healthy  at  the  time  of  the  accident,  then  a  perfect  cure  should 
be  the  result,  if  the  treatment  instituted  is  proper.  This  is 
another  of  the  errors  that  has  had  a  serious  effect  upon  the  pro- 
fession, being  often  the  source  of  ruinous  litigation. 

The  true  prognosis  of  fractures  has  not  been  very  thoroughly 
understood,  or  at  least,  promulgated,  by  the  medical  profession 
itself,  until  recently.  Professor  JOHN  DAWSON,  in  a  Report  on 
Surgery,  to  the  Ohio  Medical  Association,  says :  "  Deformities, 
shortening,  etc.,  of  course  escaped  the  attention  of  no  one  who 
had  any  experience  in  surgery;  yet,  strange  as  it  may  seem,  only 
an  occasional  hint,  or  some  accidental  remark  with  reference  to 
the  subject,  is  the  most  that  has  been  recorded.  No  attempt  upon 
any  thing  like  an  extensive  collection  of  cases  has  been  made,  to 
state  what  have  been  the  usual  results  of  fractures ;  what  propor- 
tion of  all  the  cases  treated  has  been  dismissed  perfect ;  what 
proportion  has  left  the  hands  of  surgeons  imperfect,  with  the 
bone  shortened,  bent  or  otherwise  deformed.  When  deformity 
has  followed  the  treatment  of  a  case  of  fracture,  attention — if  the 
trouble  has  occurred  in  the  hands  of  an  able  surgeon,  or  in  the 
wards  of  a  hospital — has  been  directed  to  an  imagined  or  real 

(75) 


76  MALPRACTICE. 

imperfection  in  the  fixtures  used  for  retaining  the  fragments  in 
place,  and  fulfilling  that  indication ;  and  when  it  has  happened  in 
the  hands  of  a  practitioner  of  medicine,  with  an  experience  neces- 
sarily limited,  the  fault  has  generally  been  laid  at  the  door  of  the 
practitioner,  and  he  held  responsible  for  the  consequences.  The 
real  questions — the  amount  of  injury  sustained,  the  prognosis  in 
view  of  this,  and  the  imperfect  means  in  the  hands  of  the  profes- 
sion to  restore  order,  impart  primary  symmetry — in  short,  to 
make  a  perfect  cure — have,  by  no  means,  received  the  considera- 
tion to  which  they  are  entitled.  It  would  not,  perhaps,  be  right 
to  say  that  these  important  questions  have  been  ignored;  but  it 
is  right  to  say  that  they  have  been  neglected."  He  then  very 
properly  acknowledges  that  the  profession  is  greatly  indebted  to 
Professor  HAMILTON  for  his  labors  in  this  field. 

Fractures  but  rarely  call  for  the  use  of  the  knife  in  their  treat- 
ment; yet  the  management  of  these  injuries  involves  as  many 
important  principles,  difficult  in  application,  as  where  the  knife 
is  used.  The  manipulative  agency  of  operative  surgery  is  brought 
into  active  operation  in  the  treatment  of  fractures;  and  if  not 
properly  applied,  the  result  may  be  deformity  for  life — a  deform- 
ity, perhaps,  accompanied  with  life-long  suffering. 

It  requires  less  professional  skill,  as  a  general  thing,  in  the 
treatment  of  simple  fractures,  than  of  time,  watchfulness  and 
patient  labor.  The  principles  governing  these  cases  being  usually 
simple,  the  surgeon  has  but  little  to  do  in  assisting  nature,  and 
that  by  mechanically  removing  obstacles,  and  keeping  the  limb  in 
a,  position  consistent  with  its  anatomy  and  physiology.  Nature 
effects  the  cure  here,  as  elsewhere,  while  art  and  science  co-operate, 
at  an  humble  distance. 

The  necessary  knowledge,  for  the  correct  and  successful  treat- 
ment of  fractures,  as  in  other  branches  of  surgery,  is  to  be  ob- 
tained by  not  only  elementary,  but  by  the  practical  study  of 
anatomy ;  and  without  it  the  operator  gropes  amid  doubt,  dark- 
ness, and  danger,  to  himself  and  patient. 

While  simple  fractures,  if  not  oblique,  are  not  difficult  in  their 


&IALPRACTICE  IN  FRACTURES  AND  DISLOCATIONS.  77 

treatment,  the  opposite  is  true  in  complicated  cases,  though  called 
simple.  When  the  joint  is  involved,  or  the  osseous  system  dis- 
eased, or  when  the  fracture  is  oblique — especially  in  persons  of 
nervous  and  irritable  habits — there  is  great  difficulty  attending 
the  treatment,  and  the  result  will  always  be  doubtful,  and  often 
unfortunate,  after  the  application  of  the  greatest  care  and  skill. 
Serious  as  are  these  complicated  cases  of  simple  fractures,  they  are, 
after  all,  less  formidable  than  what  are  called  compound  fractures. 
To  these  may  be  added  all  the  complications  that  render  simple 
fractures  so  troublesome. 

No  surgeon  who  understands  the  difficulties  of  his  profession, 
will  fail  to  feel  uneasy,  if  not  alarmed  and  aroused,  by  the  mag- 
nitude of  these  injuries,  when  called  to  assume  the  responsibility 
of  conducting  them  to  an  issue,  both  on  his  own  account  and  that 
of  his  patient. 

From  the  low  organization  of  the  osseous  tissue,  the  sensibility 
and  equilibrium  of  the  constitution  is  but  little  disturbed,  ordina- 
rily, in  simple  fractures.  The  health  not  being  materially  affected, 
there  is  but  little  inflammation,  and  no  suppuration  to  interfere 
with  the  simple  union  of  the  fractured  parts.  The  only  evil  to  be 
encountered  arises  from  the  necessary  restraint  to  which  the 
patient  is  subjected,  incidental  to  the  exact  adhesion  of  the  ends 
of  the  fractured  bones.  Perfect  as  are  the  powers  of  nature, 
they  are  insufficient  in  these  cases,  unless  directed  and  relieved  by 
intelligent  and  persevering  art.  The  surgeon,  therefore,  who, 
with  this  duty  devolving  upon  him,  and  surrounded  with  all  the 
advantages  that  favor  his  treatment  of  fractures,  is  without  excuse 
if  he  permits  deformity  to  supervene  and  remain,  for  want  of  due 
care  and  attention,  when  nice  questions,  on  controverted  points, 
do  not  enter  into  the  case,  or  peculiar  difficulties  attend  it. 

Much  reproach  has  been  cast  upon  British  surgery,  whether 
justly  or  not  we  can  not  tell,  because  of  the  frequrnt  occurrence 
of  deformity  in  the  simple  list  of  fractures — not  only  in  private, 
but  in  hospital  practice.  If  this  complaint  is  well  grounded,  it  i& 
not  to  be  accounted  for  in  the  want  of  surgical  knowledge,  in  the 


78  MALPRACTICE. 

main — for  England  has  produced,  and  still  furnishes,  some  of  the 
ablest  surgeons  in  the  world — but  in  the  fact  that  they  neglect  to 
attend  to  the  smaller  and  apparently  more  unimportant  matters 
of  surgery.  It  is  not  in  the  management  of  gre.it  cases  that 
superior  surgery  is  displayed,  but  in  the  common  occurrences 
which  daily  arise,  as  in  simple  fractures,  do  true  knowledge  and 
skill  become  illustrated.  Although  but  little  may  be  called  ibr, 
still  that  little  may  be  as  important,  in  its  bearing  on  the  result, 
as  if  the  demand  was  greater.  "  Genius  for  our  art  may  shine 
out  on  great  occasions,"  says  one  of  England's  ablest  surgeons, 
"and  brilliant  devices  contend  against  remarkable  deviations  from 
health,  but  conduct  is  required  of  us  all.  The  word  conduct  has 
a  wide  interpretation ;  it  appeals  to  the  application  of  the  human- 
ities of  life,  as  well  as  the  exercise  of  skill  and  industry  in  the 
application  of  our  best  resources  to  the  treatment  of  disease." 

In  holding  the  surgeon  to  a  proper  accountability  in  his  treat- 
ment of  uncomplicated  fractures,  it  must  not  be  forgotten  that, 
not  unfrequently,  there  arise  cases  of  great  difficulty  and  doubt, 
where  the  surgeon  is  embarrassed  with  both  palpable  and  obscure 
agencies,  that  render  his  most  persevering  and  best-directed  efforts 
of  but  little  or  no  effect,  and  the  termination,  without  fault  on  his 
part,  often  unfortunate.  In  these  cases,  more  particularly,  he  is 
often  unjustly  and  ruinously  assailed  and  censured,  for  want  of 
success,  both  in  and  out  of  court.  Attorneys  should  be  aware  of 
the  existence  of  these  cases,  and  carefully  discriminate  between 
them  and  those  others  where  there  may  be  delinquency,  or  actual 
fault,  on  the  part  of  the  surgeon.  In  simple,  transverse  and  un- 
embarrassed fractures,  the  surgeon  will  be  expected  to  conduct 
the  case  to  a  successful  issue.  In  oblique,  complicated,  irregular  or 
compound  injuries,  he  can  not,  in  all  cases,  or,  perhaps,  in  most, 
overcome  these  serious  difficulties,  and  effect  a  complete  cure. 
These  are  impossibilities  he  can  not  surmount ;  and  yet  they  are 
the  injuries  for  which  intelligent  and  careful  medical  practitioners 
have  been  made  to  suffer  damages. 

The  various  kinds  of  fractures  just  alluded  to,  of  course  re- 


MALPRACTICE   IN   FRACTURES   AND   DISLOCATIONS.  79 

quire,  in  their  management,  different  kinds  of  treatment  and 
degrees  of  attention.  The  more  difficult  forms  of  fractures,  and 
those  from  .which  the  surgeon  has  most  to  fear,  and  which  the 
courts  are  most  frequently  called  upon  to  review,  are  those  called 
in  the  books  compound  and  oblique  simple  fractures.  The  term 
compound  fracture,  is  strictly  technical,  and  to  the  unprofessional 
conveys  an  incorrect  idea.  It  is  a  fracture  of  the  bone,  accompanied 
with  a  ivound  of  the  skin,  communicating  with  the  fractured  bone. 
There  must,  therefore,  it  is  supposed,  be  a  greater  extent  of  injury, 
as  a  general  thing,  to  the  soft  parts  of  the  limb ;  consequently 
much  greater  difficulty  attends  the  healing  process  of  the  case. 
This  term — compound  fracture — as  used  in  surgery,  must,  neces- 
sarily, afford  many  exceptions  to  this  rule,  because  a  cutaneous 
bone  like  the  tibia  or  ulna  may,  when  fractured,  be  forced  through 
the  skin  with  but  little  injury  to  the  soft  tissues  of  the  limb,  and 
still,  while  the  technical  definition  brings  it  under  the  head  of 
u  compound  fractures,"  it  may  be,  in  fact,  really  one  of  the  most 
simple;  while,  on  the  other  hand,  the  most  severe,  troublesome 
and  dangerous  injuries  may  be,  technically,  simple,  because  the 
skin  is  not  broken.  Thus,  the  fracture  may  be  a  comminuted 
one,  involving  great  injury  of  the  muscles,  nerves  and  blood- 
vessels; and  yet,  the  cuticle  being  unbroken,  it  must  be  techni- 
cally called  a  simple  fracture.  This  gives  rise  to  much  confusion 
in  the  minds  of  those  who  have  not  given  the  subject  particular 
attention.  An  attorney,  for  instance,  after  ascertaining  or  in- 
quiring into  the  nature  of  a  case,  learns  that  at  the  commence- 
ment it  was  a  simple  fracture,  and,  judging  from  the  magnitude 
of  the  evil  resulting  to  the  patient,  concludes  that  there  must 
have  been  Malpractice  in  the  treatment,  and  commences  at  once  a 
a  suit  for  damages. 

Those  unacquainted  with  surgery  and  anatomy  have  a  right  to 
understand  from  the  term  simple,  a  slight,  plain  and  unimportant 
injury,  which,  under  ordinary  circumstances,  will  run  on  to  a 
favorable  termination.  For  the  same  reason,  a  compound  fracture 
is  looked  upon  as  necessarily  more  complex  and  difficult  in  treat- 


80  MALPRACTICE. 

ment,  when,  in  fact,  it  may  not  be  particularly  dangerous  or 
troublesome  in  its  management. 

The  severer  forms  of  simple  and  compound  fractures,  in  gen- 
eral, demand  of  the  surgeon  the  highest  degree  of  effort  and 
intelligence,  and  the  surest  resources  of  his  art — whether  consid- 
ered in  regard  to  local,  mechanical  or  constitutional  management. 
The  dangers  from  simple  fractures  are  usually  immediate  and 
simple.  In  compound  fractures,  on  the  other  hand,  the  danger  is 
generally  prospective.  The  immediate  local  inflammation  may 
be  severe,  but  the  great  danger  to  be  anticipated  is  from  suppura- 
tion and  gangrene;  and  these  symptoms  are  not  unfrequently 
accompanied  by  different  forms  of  traumatic  fever,  assuming  the 
character  of  hectic  and  typhus.  The  constitutional  forces  being 
reduced  by  the  original  shock  to  a  low  standard,  the  powers  of 
life  run  low,  leaving  the  integrity  and  vitality  of  the  recuperative 
agencies  powerless ;  and,  just  at  this  point,  and  under  this  state 
of  things,  one  of  the  most  difficult  and  close  questions  of  surgery 
arises — a  question  upon  the  solution  of  which  depends  the  life  of 
the  patient,  perhaps,  and,  possibly,  the  reputation  of  the  surgeon — 
to  decide  which  question  correctly,  calls  into  requisition  correct 
logic,  close  observation  and  extensive  surgical  knowledge:  and 
that  is  the  questian  of  amputation.  In  these  difficult  cases,  the 
result,  let  it  be  for  or  against  amputation,  will  generally  be  criti- 
cally questioned.  The  loss  of  a  limb,  on  the  one  hand,  will  raise 
the  question  of  the  propriety  of  the  amputation,  long  after  the 
real  condition  that  was  supposed  to  demand  it  is  forgotten  by  all, 
perhaps,  except  the  surgeon  himself.  So,  if  amputation  is  over- 
ruled, and  the  patient  dies,  the  surgeon  is  to  blame  for  the  sad 
result.  These  cases  are  most  fruitful  sources  of  litigation.  If 
the  limb  was  amputated,  it  is  said  there  was  gross  carelessness,  or 
recklessness,  and  a  want  of  care  and  skill — that  the  limb  might 
have  been  saved  had  the  proper  effort  been  made  at  the  right 
time.  If  the  surgeon  gives  to  the  patient  the  benefit  of  a  doubt, 
as  to  the  propriety  of  amputation  in  a  close  case,  and,  after  long 
and  vigilant  watching,  surmounts  great  difficulties,  saves  the  limb 


MALPRACTICE   IN   FRACTURES   AND    DISLOCATIONS.  81 

in  a  condition  to  be  of  great  use  to  the  patient,  yet,  it  not  being 
a  perfect  cure,  then  the  surgeon  is  said  still  to  be  at  fault,  not- 
withstanding the  injury  was  so  severe  that  the  question  of  am- 
putation hung  evenly  in  the  balance  for  a  time,  and  he  is  sued. 

Such  cases,  with  similar  results,  have  fallen  under  the  observa- 
tion of  every  surgeon,  and  most  attorneys.  Two  cases  will  illus- 
trate this  fact :  Drs.  H.  &  S.  were  called  upon  to  see  a  Mr.  P., 
whose  leg  had  been  crushed  by  a  falling  log,  while  assisting  to 
elevate  it  in  building  a  log  house,  in  a  new  settlement.  The 
injury  was  so  severe,  in  the  opinion  of  these  surgeons,  that  ampu- 
tation was  deemed  necessary.  They  were  both  old  experienced 
physicians  and  surgeons,  having  practiced  thirty  or  forty  years  in 
the  locality  where  the  accident  happened.  The  operation  was 
performed  after  due  deliberation  and  consultation — the  patient 
recovering  from  the  operation  in  about  the  usual  time.  Some 
years  after  the  events  of  accident  and  amputation,  the  manner  and 
propriety  of  this  amputation  were  discussed  among  the  friends  of 
the  patient ;  the  bones  were  dug  up,  cleansed,  and  made  the  basis 
of  a  suit  against  the  surgeons.  Damages  were  laid  at  $10,000. 
Eminent  counsel  were  found  to  undertake  and  carry  on  the  cause 
fur  a  portion  of  the  spoils.  Several  long  trials  were  had — the 
jury  not  agreeing.  Depositions  were  taken  in  Philadelphia,  New 
York  and  Washington,  involving  great  expense.  No  judgment 
was  obtained  against  the  defendants,  but  the  litigation  was,  never- 
theless, ruinous  to  them.  The  accumulation  of  the  labors  of  years 
was  swept  away.  Had  these  surgeons  made  the  hazardous  at- 
tempt of  saving  the  limb,  and  had  succeeded  to  a  tolerable  degree, 
then  they  would  have  been  sued  for  not  having  performed  a  per- 
fect cure. 

In  the  other  case,  the  patient  was  a  rash,  reckless  young  man, 
and  while  enjoying  one  of  his  break-neck  exploits,  fell  beneath  a 
wild  colt,  which  he  was  attempting  to  ride.  In  the  fall  the  foot 
and  leg  lay  at  an  angle  of  twenty  or  thirty  degrees,  resting  be- 
tween the  hard  earth  and  a  thick  oak  plank ;  the  weight  of  the 
horse  crushing  it  into  the  ground  while  in  this  position.  The 
6 


82  MALPRACTICE. 

result  was  a  compound  comminuted  fracture  of  the  tibia  and 
fibula,  rupturing  the  tibial  artery,  crushing  the  nerves,  bruising 
the  muscles  badly,  afiecting  the  vitality  and  integrity  of  the  limb 
to  so  great  an  extent,  the  foot  became  immediately  cold.  Not- 
withstanding these  untoward  symptoms,  the  surgeons  in  attend- 
ance adopted  the  hazardous  conclusion  of  trying  to  save  the  limb. 
The  weather  was  warm  and  the  constitution  depraved.  General 
suppuration  took  place  from  the  knee  to  the  loot.  So  low  were 
the  powers  of  life,  that  sloughing  supervened  at  every  point  about 
the  foot  or  ancle,  where  the  lightest  pressure — even  that  of  a  light 
bandage — bore  upon  it.  Extension  was  out  of  the  question.  The 
lower  part  of  the  heel  sloughed,  from  the  weight  of  the  foot,  though 
resting  on  the  softest  cushion.  Animalculse  would  form  in  twenty-four 
hours,  in  various  parts  of  the  limb,  after  the  most  perfect  cleansing. 

After  months  of  watching,  and  the  greatest  care,  adhesions 
took  place,  and  the  patient  recovered  from  one  of  the  severest 
and  most  loathsome  fractures  of  the  leg,  with  a  healing  ulcer 
over  the  instep,  and  the  limb,  perhaps,  half  an  inch  shorter  than 
its  mate.  The  surgeon  received  from  the  township  authorities — 
for  the  patient  was  a  pauper — twenty  dollars  for  his  services.  So 
soon  as  the  patient  could  travel,  ho  found  his  way  to  a  lawyer, 
and  commenced  a  suit  against  the  surgeon,  not  because  he  had 
not  cut  the  limb  off — which  he  should  have  done  according  to  the 
best  rules  of  surgery — but  because  there  was  an  ulcer  still  remain- 
ing, and  for  the  other  reason  that  the  limb  was  at  least  half  an 
inch  too  short !  Damages  $5,000.  The  case,  after  hanging  in 
court  for  several  terms,  to  the  great  annoyance  and  damage  of 
the  surgeon,  was  dropped. 

So  alarmed  and  disgusted  was  the  surgeon  at  the  facilities  for 
bringing  a  suit  for  Malpractice,  and  the  danger  of  having  to 
defend  cases  of  this  kind,  he  left  the  profession  forever. 

The  author  knows  many  able  surgeons,  who,  being  men  of 
property,  will  not  risk  it  by  the  practice  of  surgery.  They 
practice  medicine,  but  not  surgery,  and  for  the  reason  of  the 
dangers  attending  its  practice. 


MALPRACTICE   IN   FRACTURES   AND    DISLOCATIONS.  83 

There  can  hardly  be  found  a  place  in  the  country,  where  the  oldest 
physicians  in  it  have  not,  at  some  period  of  their  lives,  been  actually 
sued,  or  annoyingly  threatened.  The  fact  that  actual  damages 
are  not  often  recovered,  helps  the  matter  but  little.  The  dam- 
age to  business,  and  the  costs  attending  the  suit,  are  usually  great. 

Very  great  difficulty  attends  the  treatment  of  oblique  simple 
fractures,  and  there  is  no  doubt  but  too  often — at  the  suggestion 
of  the  patient  himself,  perhaps — the  surgeon  leaves  the  case  too 
soon.  In  the  able  report  to  the  Ohio  State  Medical  Society,  on 
Malpractice,  already  referred  to,  it  is  said : 

"  Your  committee  consider  it  unsafe  to  leave  any  of  the  larger 
oblique  fractures  at  the  end  of  thirty-four  days;  and  here  we 
would  respectfully  suggest  that  our  text-books  and  teachers  would 
do  well  to  observe  a  distinction  as  to  the  length  of  time  treatment 
should  be  continued  in  those  cases  of  transverse  fracture,  where 
there  is  overlapping,  and  the  larger  oblique,  as  compared  with 
transverse  fracture,  where  there  is  no  overlapping. 

It  is  believed  that  all  our  works  concur  in  this  opinion,  that  the 
new  bond  of  union  is  such,  that  pressure  is  capable  of  curing  deform- 
ity, of  correcting  angles,  etc.;  in  brief,  that  for  a  length  of  time,  pres- 
sure is  capable  of  producing  absorption,  and,  consequently,  more 
or  less  alteration  in  the  relation  of  the  united  bones  to  each  other. 

Now,  apply  what  is  thus  admitted  to  the  circumstances  attend- 
ing a  well-reduced  and  well-retained  transverse,  as  compared  with 
ran  overlapping  or  very  oblique  fracture. 

In  transverse  fractures,  if  reduction  and  retention  have  been 
•quite  successful  at  the  end  of,  say,  forty  days,  we  stop  our  exten- 
sion and  counter-extension ;  and  very  soon,  if  it  is  a  lower  ex- 
tremity, more  or  less  weight  is  borne  by  it.  Now,  reduction  and 
retention  having  been  quite  perfect,  the  fractured  surfaces  are 
kept  in  contact  with  each  other.  We  will  have  poured  out,  in 
these  circumstanses,  a  minimum  quantity  of  what  is  usually 
regarded  as  provisional  plastic  material.  It  will  be  deposited 
between  the  fractured  surfaces  and  around  the  ends  of  the  bones. 
Now,  dropping  our  means  for  extension  and  counter-extension,  at 


84  MALPRACTICE. 

the  end  of  forty  days,  we  give  up  the  parts  to  a  constantly 
exerted  and  unrestrained  muscular  action,  which  now  comes  to 
exert  pressure  upon  the  parts,  with  a  degree  of  constancy  and 
efficiency  far  surpassing  any  thing  the  surgeon  can  do  by  arti- 
ficial means.  The  use  of  the  part  does  the  same  thing,  but  with 
less  constancy.  But  in  these  circumstances  no  shortening  can 
result.  Pressure  upon  the  articular  extremities  of  the  broken 
bone,  is  not  here  an  indirect  pressure  upon  the  recently-deposited 
plastic  material.  It  is  merely  a  pressing  together  of  the  surfaces 
of  the  fracture :  this  does  not  produce  absorption  of  these,  and 
therefore  can  not  produce  shortening. 

But  suppose  there  is  overlapping,  and  the  patient  is  subjected 
to  treatment  for  the  same  length  of  time — admit,  too,  that  an 
equal  strength  is  attained  at  the  end  of  forty  days — the  bond  of 
union,  in  this  case,  is  effused  in  the  maximum  quantity,  lies  be- 
tween the  bones,  around  them,  and  on  their  ends.  Now,  what 
will  be  the  result  of  pressure  from  the  use  of  the  limb,  or  from 
the  much  more  constant  and  efficient  pressure  consequent  upon 
muscular  contraction  ? 

Pressure  upon  the  extremities  of  the  bone,  in  these  circum- 
stances, is  indirect  pressure  upon  the  bond  of  union,  and  can  not 
.fail,  if  it  produce  absorption,  to  change  the  relation  of  the  over- 
lapping bones  to  each  other,  occasioning  shortening;  hence  the 
necessity  of  resisting  muscular  action,  and  suspending  the  use  of 
the  limb — of  continuing  treatment,  in  other  words,  for  a  greater 
length  of  time  than  in  the  first  class  of  cases ;  hence  the  neces- 
sity of  a  guarded  prognosis,  in  this  class  of  cases,  as  to  obstinate 
results ;  hence,  too,  the  explanation  of  a  shortening  process,  run- 
ning through  many  months,  which,  your  committee  are  well  as- 
sured, characterize  many  cases  of  fracture ;  the  existence  of  which 
shortening  process,  in  a  limited  number  of  cases,  they  have  proved 
by  carefully-instituted  measurements,  made  at  various  stages. 

A  little  reflection  is  sufficient  to  show  that  these  considera- 
tions apply  with  scarcely  less  force  to  very  oblique  fractures,  with 
the  best  possible  adjustment." 


MALPRACTICE    IN    FRACTURES    AND    DISLOCATIONS.  85 

To  Prof.  HAMILTON  belongs  the  honor  of  having,  by  a  long 
and  well  considered  series  of  observations,  and  the  collection  and 
comparison  of  a  very  large  number  of  cases,  established  the 
important  fact,  of  which  surgeons  themselves  did  not  before  eeem 
to  be  aware,  that  in  almost  all  oblique  fractures  there  is,  neces- 
sarily, a  shortening  of  the  limb,  under  the  best  of  treatment. 
Before  his  investigations  were  made  known,  it  was  supposed  bv 
the  unprofessional,  and  not  contradicted  by  the  professional,  that- 
good  surgery  would,  in  most  cases,  bring  about  an  exact  cure,  so 
far  as  length  was  concerned ;  and  when  this  result  did  not  follow 
the  treatment,  the  surgeon  was  blamed.  Surgical  authors  have 
taught  the  doctrine,  that  if  the  injured  limb  was  not  of  the  same 
length  as  its  mate,  there  was  bad  surgery.  Mr.  SOUTH,  the 
editor  of  Chelius'  Surgery,  says:  "In  simple  fractures  of  the 
thigh  bone,  except  with  great  obliquity,  I  have  rarely  found  diffi- 
culty in  retaining  the  broken  ends  in  place,  and  in  effecting  the 
reunion  without  deformity,  and  with  very  little,  and,  sometimes, 
no  shortening.  For  contrary  results,  the  medical  attendant  is 
mostly  to  be  blamed,  as  they  are  usually  consequent  on  his  care- 
lessness or  ignorance."  So  far  from  this  being  true,  Prof. 
HAMILTON  has  shown,  in  his  "Fracture  Tables,"  that  in  fractures  of 
the  tibia  and  fibula,  both  compound  and  simple,  perfect  results  are 
in  the  proportion  only  of  one  to  about  three  of  the  cases  treated ; 
and  in  fractures  of  the  femur  and  clavicle,  complete  cure  results 
in  about  one  case  in  five ;  in  fractures  of  the  patella  a  perfect 
«ure  happens  only  in  one  case  in  six. 

When  attorneys  come  to  understand  that  the  rule  is,  that 
under  the  best  circumstances  and  treatment,  the  steady  contrac- 
tion of  the  muscles  will  bring  about  a  shortening  of  the  limb, 
there  will  be  much  less  litigation  in  this  important  department 

NOTE. — The  surgeon's  safety  requires  that  he  should,  in  the  case  of  fractures 
and  dislocations,  spare  no  effort,  1st,  to  be  certain  in  diagnosis  of  the  injury;  2d, 
to  carefully,  but  boldly  and  firmly,  adjust  and  keep  in  place  the  injured  part; 
3d ,  to  apply  the  most  approved  dressings  and  apparatus;  4th,  let  there  be  no 
hesitation  in  the  judicious  use  of  anaesthesia  for  the  control  of  spasmodic  action 
And  pain.  See  Hamilton's  Frac.  andDis.,  27-38-418,  5th  Ed. ,  Sir  A.  Cooper's 
Di».  and  Frac.,  319 ;  Ashuret's  Surg.;  270-271. 


CHAPTER  VI. 

A  DIGEST  OF  PROFESSOR  F.  H.  HAMILTON'S  REPORTS  OF  CASES  OF 
DEFORMITIES  AFTER  FRACTURES. 

THIS  chapter  contains  a  digest  of  the  Reports  of  Prof.  F.  H- 
HAMILTON  on  Deformities  after  Fractures,  published  in  Vols.  8, 9. 
and  10,  of  "The  Transactions  of  the  American  Med.  Association," 
embodying  those  points  that  arise  in  cases  of  Malpractice,  and  of 
most  interest  to  attorneys  and  surgeons  in  a  Medico-legal  point 
of  view.  The  labors  of  Prof.  H.  are  herculean,  and  the  results, 
of  great  practical  importance  to  the  surgeon.  His  Reports  run 
through  three  volumes,  occupying  four  or  five  hundred  pages  of 
the  Transactions. 

He  says :  "  I  suppose  that  most  practical  surgeons  have  a  tol- 
erably correct  appreciation  of  prognosis  in  fractures.  I  say 
tolerably,  because  I  wish  to  imply  a  qualification.  I  do  not 
think  that  a  majority  of  even  '  practical '  surgeons  have  a  full 
appreciation  of  the  subject.  I  am  frank  to  confess  that,  until  I 
commenced  these  investigations,  I  had  not  any  just  notions  of 
the  frequency  of  deformities  after  fractures.  Students 

will  continue  to  go  out  from  our  hospitals  with  a  belief  that 
perfect  union  of  the  broken  bones  is  the  rule,  and  that  the  excep- 
tions imply,  generally,  unskillful  management;  and  if,  when 
hereafter  they  have  themselves  occasion  to  treat  a  fractured 
femur,  the  result  falls  short  of  their  standard  of  perfect  success, 
they,  taught  also  by  the  same  instinct  of  self-preservation  which 
actuated  their  teacher,  will  conceal  the  truth  from  others,  and 
even  from  themselves,  if  possible.  Nay,  I  fear  that  sometimes^ 
under  the  same  urgent  promptings,  and  where  the  moral  sense  is 
not  superior  to  all  other  considerations,  they  may  hesitate  to- 

(86) 


DEFORMITIES   AFTER   FRACTURES.  87 

regard  the  sanctity  of  an  oath !  How  else  shall  we  explain  the 
testimony  of  that  man  who,  with  uplifted  hand,  affirms  that  he 
has  '  seen  and  treated  ten  fractures  of  the  femur,  in  adult  per- 
sons, and  not  one  of  them  is,  in  any  way,  shortened  or  deformed  ?' 
Or  what  less  charitable  construction  will  you  place  upon  the  pub- 
lished averment  of  a  hospital  surgeon,  in  a  neighboring  province, 
when,  in  his  remarks  upon  my  '  fracture  tables,'  he  declares  that 
he  has  treated,  at  the  hospital  under  his  care,  one  case  of  frac- 
tured inferior  maxilla,  three  cases  of  broken  clavicles,  two  of 
which  were  at  the  outer  third,  seven  of  fractured  femurs,  one  of 
which  was  compound  and  one  comminuted,  eight  cases  of  frac- 
ture of  the  tibia  and  fibula,  two  of  which  were  comminuted  and 
one  compound — in  all,  nineteen  cases,  and  that,  with  the  excep- 
tion of  one  who  died,  every  case  resulted  in  a  perfect  cure  T ' 

Notwithstanding  the  very  many  imperfect  cures,  in  these  cases, 
under  the  treatment  of  the  best  class  of  surgeons  in  America,  he 
says :  "  I  am  prepared  to  affirm,  after  visiting  the  larger  hospitals 
of  England  and  the  Continent,  and  having  observed  carefully 
their  methods  of  treatment,  and  in  some  measure  noticed  their 
success,  that,  in  so  far  as  I  have  yet  seen,  the  practice  of  Amer- 
ican surgeons,  in  the  management  of  fractures,  compares  favor- 
ably with  that  of  any  other  people.  The  English  are  themselves 
proclaiming  their  deficiencies  in  this  department  of  surgery.  It 
is  now  more  than  one  hundred  years  since  Pott,  then  surgeon  to 
St.  Bartholomew's  Hospital,  inquired  of  his  brethren  if  it  was  not 
*  notorious '  that  in  England  broken  thighs  and  legs  were  t  often, 
very  often,  left  deformed,  crooked  and  shortened  ?'  To-day,  the 
very  distinguished  successor  of  Mr.  Pott,  in  the  same  great 
hospital,  finds  occasion  to  say :  '  One  is,  therefore,  at  a  loss  to 
find  any  apology  for  those  surgeons  whose  want  of  care,  and  even 
humanity,  may  be  attributed  the  numerous  examples  of  distorted 
and  contracted  members  which  have  cast  a  reproach  on  the  sur- 
gery of  Great  Britain.' ' 

"  What  good,  do  you  ask,  can  be  accomplished  by  exposing 
our  failures,  unless  we  have  found  the  remedy,  in  which,  alone, 


88  MALPRACTICE. 

the  world  can  claim  a  final  interest  ?  I  reply,  that  the  first  step 
toward  improvement,  in  any  art  or  science,  must  be  the  faithful 
exposure  of  its  wants  and  deficiencies ;"  and  he  might  have  added, 
with  equal  truth  and  propriety,  "  To  show  to  the  courts  what  can 
not  be  accomplished  by  the  best-informed  and  most  practical  sur- 
geons in  the  profession,  thus  saving  them  from  unjust  censure 
and  heavy  pecuniary  damages."  The  first  five  chapters,  making 
up  the  entire  Report,  in  Vol.  8,  for  1855,  are  devoted  to  frac- 
tures of  the  os  nasi,  septum  narium,  ossa  maxilla  superiora, 
maxilla  inferiora,  and  the  clavicle,  out  of  the  treatment  of  which 
cases  of  Malpractice  very  rarely  if  ever  arise,  will  be  entirely 
passed  over.  To  the  practical  surgeon  the  chapter  is  of  interest, 
but  not  so  specially  to  the  Medico-legal  student. 

In  the  second  part  of  Prof.  HAMILTON'S  Report,  he  discusses, 
in  a  series  of  chapters,  deformities  in  fractures  of  the  scapula, 
humerus,  radius,  ulna,  radius  and  ulna,  carpus  and  phalanges. 

The  surgeon  is  not  unfrequently  sued  for  damages  in  cases  of 
fracture  of  the  acromion  process.1  Prof.  H.  says ;  "  Of  the  treat- 
ment of  the  coracoid,  or  of  the  acromion  process,  I  have  only 
one  general  observation  to  make.  It  is  very  obvious  that,  in 
neither  of  these  fractures  can  any  thing  be  accomplished  by 
splints,  and  probably  quite  as  little  by  position.  All  that  the 
surgeon  can  do  is  to  enjoin  rest,  and,  if  necessary,  to  enforce  it 
by  suitable  bandages,  and  to  control  inflammation.  If  the  neck 
of  the  scapula  is  broken,  whether  the  fracture  be  simple  or  com- 
minuted, the  rational  indication  seems  to  be  to  place  a  moderate 
compress  on  the  axilla,  and,  having  disposed  the  arm  in  the 
sling,  to  secure  the  elbow  snugly  against  the  side  of  the  body." 

Deformities  after  fractures  of  the  humerus  are  common.  The 
diagnosis  is  often  attended  with  great  trouble — the  ablest  sur- 
geons being  deceived.  Prof  H.  relates  the  following  case,  where 
he  was  himself  deceived  in  a  fracture  of  the  surgical  neck  of  the 
humerus;  and  herein  consists  the  great  value  of  Prof.  H.'s 

1  Boston  Med.  Jour.  Vol.  31,  p.  501 ;  Illinois  Med.  Jour.  1845. 


DEFORMITIES   AFTER   FRACTURES  89 

reported  cases;  he  never  spares  himself;  where  he  has  failed  or 
been  mistaken,  he  says  so  without  fear  or  apology. 

"White,  of  Buffalo,  aged  twelve,  fell  fourteen  feet,  striking 
on  the  front  and  outside  of  the  left  shoulder.  Dr.  P.,  of  Erie 
county,  saw  the  lad  within  three  hours.  He  was  brought  to  me 
on  the  fourth  day  after  the  accident,  The  upper  part  of  the 
.arm  was  very  much  swollen.  I  found  the  arm  dressed  as  for  a 
fracture  of  the  middle  or  lower  third  of  the  humerus.  It  was 
shortened  over  an  inch.  Tne  elbow  was  inclined  backward,  and 
there  was  a  remarkable  projection  in  front  of  the  joint,  feeling 
like  the  head  of  the  bone.  The  hand  and  arm  were  powerless. 
I  suspected  a  dislocation  of  the  head  of  the  humei  us  forward ; 
-and,  having  administered  chloroform,  I  attempted  its  reduction 
with  my  heel  on  the  axilla.  While  making  the  extension,  I  felt 
-a  sudden  sensation,  like  the  slipping  of  the  bone  into  its  socket ; 
but,  on  examination,  I  found  the  projection  continued  as  before. 
I  then  repeated  the  effort  with  precisely  the  same  result.  I  now 
applied  an  arm-sling,  and  directed  leeches  and  cold  evaporation 
.and  lotions.  On  the  25th,  five  days  after  the  accident,  it  was 
examined  by  Drs.  Mixer,  McGregor,  Joseph  Smith  and  myself. 
We  still  believed  it  was  a  dislocation,  and,  having  administered 
chloroform,  we  again  attempted  its  reduction.  The  same  slipping 
sensation  was  produced  as  before,  and  the  deformity  was  repeat- 
edly made  to  disappear;  but  on  suspending  the  extension,  it  as 
often  reappeared.  The  character  of  the  accident  was  now  made 
.apparent,  and  we  proceeded  at  once  to  apply  the  splint  and 
bandages  suitable  for  a  fracture  of  the  surgical  neck  of  the 
humerus,  namely,  a  gutta  percha  splint,  extending  on  the  out- 
side, from  the  top  of  the  shoulder  to  below  the  elbow,  with  an 
.arm  and  body  roller,  secured  with  flour  paste.  On  the  31st, 
twelve  days  after  the  accident,  Dr.  Wilcox,  marine  surgeon>  saw 
the  arm  with  me.  The  fragments  were  displaced,  the  same  as 
when  I  first  saw  it,  and  the  same  as  when  no  apparatus  had 
been  applied.  We  examined  it  again  carefully,  and  attempted 
to  make  the  fragments  remain  in  place,  but  we  were  unable  to 


90  MALPRACTICE. 

do  so,  except  while  holding  them  and  making  extension. 
August  9th,  (21st  day,)  Dr.  Bo  wen,  Prof,  of  Anatomy,  in 
Geneva  Medical  College,  being  present,  I  removed  all  the  dress- 
ings. Motion  between  the  fragments  had  ceased,  but  the  projec- 
tion and  shortening  remained  as  before;  now,  also,  the  irregular 
projections  of  the  fractured  bones  were  more  distinctly  felt.  The 
dressings  were  never  reapplied.  Three  months  later  no  change 
had  occurred.  He  could  carry  the  elbow  forward  freely,  as  well  as 
backward — the  motions  of  the  shoulder  joint  being  unimpaired." 

There  is  great  difficulty  in  distinguishing  dislocations  from 
fractures  of  the  condyle,  where  there  is  much  swelling.  The  fol- 
lowing case  illustrates  this:  "Francis  Clifford,  of  St.  Catherines, 
C.  W.,  aged  fifteen,  fell,  in  wrestling,  with  his  right  arm  under 
him,  December  22,  1855.  The  arm  was  seen  by  Dr.  Henry 
Goodman,  of  St.  Catherines,  and  treated  by  him.  Three  months 
after  the  accident,  the  lad  was  brought  to  me  by  his  father,  and 
they  made  the  following  statement:  'Dr.  Goodman  said  the  bones 
were  dislocated  inward,  and  by  pulling  and  manipulation,  he 
reduced  them.  The  elbow  was  then  greatly  swollen.  He  applied 
no  splints,  but  only  treated  the  arm  in  such  a  way  as  to  subdue 
the  inflammation.  Subsequently  it  was  seen  by  another  surgeon 
in  Canada,  who  believed  that  the  ulna  was,  at  the  time  of  the 
accident,  displaced  inward,  and  that  it  still  remained  unreduced.' 
Dr.  J.  Mack,  a  distinguished  surgeon  of  St.  Catherines,  had  also 
seen  the  arm,  and  did  not  think  the  ulna  was  now  out  of  place, 
but  that  the  inner  condyle  was  broken  off!  I  find  a  fragment — 
the  apophysis  of  the  internal  condyle — broken  off  and  removed 
downward  toward  the  wrist  one  inch  and  a  quarter,  where  it  is 
immovably  fixed.  The  elbow  is  partially  anchylosed,  so  that  it 
can  not  be  straightened  completely,  nor  flexed  to  a  right  angle. 
Pronation  and  supi nation  are  perfect.  Dr.  Mack  had  endeavored 
to  overcome  the  anchylosis  by  moderate  force,  applied  gradually, 
by  means  of  a  splint,  but  he  had  not,  thus  far,  been  successful. 

The  father  had  already  commenced  an  action  against  Dr. 
Goodman  for  damages. 


DEFORMITIES   AFTER    FRACTURES.  91 

It  is  quite  certain  that  the  articular  surfaces  are  not  now 
displaced.  Whether  they  were  displaced  originally,  it  is,  of 
course,  impossible  to  say.  Whether  they  were  or  were  not,  I  do 
not  understand  how  the  surgeon  is  to  blame  for  not  recognizing 
this  fracture  when  the  limb  was  so  much  swollen ;  nor  do  I  be-- 
lieve  that  he  could  have  prevented  the  displacement  of  the  frag- 
ment if  he  had  discovered  the  fracture.  It  is  very  probable,  also, 
that  the  lad  will  ultimately  have  a  fair  use  of  his  elbow  joint; 
and  all  this  I  felt  it  my  duty  to  state  to  the  parties,  to  which  the 
father  replied  only  that  he  could  not  afford  to  have  his  son  lose 
the  use  of  his  arm." 

Another  case  is  given  where  deformity  resulted  from  a  simple 
oblique  fracture.  "A  lad  of  eight  years  fell  from  a  hight  of  four 
feet,  striking  upon  the  floor,  and  breaking  his  left  humerus  just 
above  the  condyles.  The  direction  of  the  fracture  was  obliquely 
downward  and  forward.  Dr.  A.  H.,  of  Pomfret,  was  called,  but 
refused  to  visit  the  patient,  declaring  that  he  did  not  practice 
surgery. 

Two  other  physicians  were  then  successively  called,  but  they 
also  declined  positively ;  and  Dr.  H.,  being  again  earnestly  pressed 
to  go,  consented,  though  very  reluctantly.  He  determined  easily 
the  nature  of  the  fracture,  but  as  the  arm  was  already  much 
swollen,  he  concluded  not  to  apply  immediately  any  splints.  On 
the  third  day  he  reduced  the  fragments  as  well  as  he  could,  and 
applied  two  right-angled  splints — one  on  the  palmar  and  one  on 
the  dorsal  surface  of  the  arm  and  forearm — with  suitable  com- 
presses, rollers,  etc.;  also,  two  small  lateral  splints.  These  dress- 
ings he  continued  to  the  arm  during  the  period  of  four  or  five 
weeks,  when  they  were  finally  removed.  About  nine  months 
after  the  accident  the  lad  was  brought  to  me  for  examination.  I 
found  the  fragments  overlapped  one  inch ;  the  upper  fragment 
projecting  in  front,  and  the  skin  covering  its  sharp  point  being 
very  thin  and  tender ;  the  motion  at  the  elbow  joint  perfect.  The 
hand  was  flexed  forcibly  upon  the  wrist ;  the  first  phalanx  of  all 
the  fingers  extended,  and  the  second  and  third  forcibly  flexed ; 


92  MALPRACTICE. 

supination  and  pronation  completely  lost;  the  arm  weak  and 
painful ;  the  ulnar  nerve  could  be  felt  lying  across  the  projecting 
end  of  the  bone.  In  the  hope  that  some  favorable  change  might 
result  to  the  hand  by  relieving  the  pressure  upon  the  ulnar 
nerve — yet  with  not  much  expectation  of  success — I  exposed  the 
bone,  and  removed  the  projecting  fragments  with  a  chisel  and 
saw.  The  ulnar  nerve  had  to  be  lifted  and  laid  aside.  The 
wound  healed  kindly,  but  the  hand,  one  year  from  this  date, 
remained  in  the  same  condition  as  before  the  operation." 

The  surgeon  was  subsequently  sued,  but  the  case  never  came 
to  trial. 

Out  of  sixty-seven  cases  of  fracture  of  the  humerus,  only 
about  thirty-four  resulted  in  perfect  cures,  though,  as  a  general 
thing,  treated  by  ordinarily  good  surgeons — so  doubtful  is  the 
result  in  fractures  of  this  bone. 

The  conclusion  to  which  Prof!  H.  arrives,  where  the  fracture  is 
on  the  upper  end  of  the  humerus,  is,  "Where  there  is  much  dis- 
placement of  the  tubercle,  in  consequence  of  the  rupture  of  the 
fibrous  and  tendinous  structures  which  invest  it,  ligamentous  union 
is  more  likely  to  be  the  result  than  osseous.  In  the  inter-cap- 
sular  fracture,  without  impaction,  the  head  of  the  humerus  may 
perish  from  want  of  nutrition.  In  such  cases,  disorganization  of 
the  joint  may  ensue,  as  the  result  of  the  processes  by  which  the 
elimination  of  the  dead  bone  is  accomplished.  In  the  inter-cap- 
sular  impacted  fracture,  the  deformity  is  greater  than  in  the 
extra  capsular.  Each  variety  unites  with  deformity.  The  chief 
diagnostic  signs  of  the  separation  of  the  superior  epiphysis  of 
the  humerus,  are  an  abrupt  projection  beneath  the  coracoid 
process,  caused  by  the  upper  end  of  the  lower  fragment,  and  the 
immediate  recurrence  of  the  deformity  when  the  means  employed 
for  its  reduction  cease  to  be  in  operation.  There  is  no  fracture 
incidental  to  the  upper  end  of  the  humerus,  in  which  it  is  more 
-difficult  to  maintain  the  fragments  in  their  proper  relative  posi- 
tion. The  supposition  that,  in  this  injury,  the  tubercles  form  a 
portion  of  the  lower  fragment,  involves  an  anatomical  error — the 


DEFORMITIES    AFTER   FRACTURES.  93 

line  of  junction  of  the  epiphysis,  with  the  shaft  being  below  these 
processes."  These  are  also  the  conclusions  of  Robert  W.  Smith, 
of  Dublin.1  Prof.  H.  adds:  "Perhaps  no  place  will  be  more 
appropriate  than  this,  to  speak  of  the  difficulty  of  diagnosis  in 
fractures  about  the  joints,  and  especially  in  fractures  occurring  in 
the  vicinity  of  the  shoulder  joint — a  difficulty  so  serious  as  to 
materially  embarrass  the  surgeon  in  his  prognosis,  and  which,  it 
must  certainly  not  be  denied,  diminishes  the  value  of  my  own 
conclusions,  as  based  upon  my  recorded  cases.  It  is  only,  after 
all,  by  an  examination  of  a  great  number  of  cases,  both  before 
and  after  death,  that  we  shall  ever  arrive  at  a  complete  solution 
of  these  difficult  questions.  To  this  point  already  the  labors  of 
Sir  A.  Cooper,  B.  Smith,  Key,  and  others  have  been  especially 
directed ;  yet  the  constant  mistakes  committed  to-day  by  the  most 
experienced  surgeons — not  to  speak  of  those  acknowledged  by  Sir 
Astiey  himself — testify  to  the  imperfection  of  our  knowledge.'' 

Mr.  Johnson  says  :  "  It  is  perfectly  undeniable  that  fractures  of 
the  upper  extremity  of  the  humerus,  and  dislocations  of  the  head 
of  that  bone — especially  dislocations  into  the  axilla — are,  at 
times,  confounded  with  and  mistaken  for  each  other,  even  by 
those  whose  experience  is  great.  We  allude  to  our  hospital  sur- 
geons. If  such  mistakes,  then,  occur  with  those  whose  opportu- 
nities of  practice  are  considerable,  a  fortiori,  how  much  more 
frequent  must  they  be  among  those  who  have  few  or  no  such 
opportunities,  and  in  country  practice,  in  particular.  The  ques- 
tion, indeed,  need  not  be  begged,  for  the  fact,  as  so  put,  is,  un- 
happily, notorious."2 

Prof.  H.  says :  "  It  has  occasionally  happened  to  me  to  see  the 
surgeon  severely  blamed  for  errors  of  diagnosis  in  relation  to 
injuries  about  the  shoulder  joint ;  and  I  would  like  to  impress 
upon  surgeons  the  necessity  of  studying  the  diagnostic  signs  of 
these  various  accidents  with  great  care." 


1  Treatise  on  Fractures  in  the  Vicinity  of  Joints,  etc.,  pp.  207-8. 

2  Med.  Chir.  Rev.,  Vol.  14,  p.  133. 


94  MALPRACTICE. 

Of  the  shaft  of  the  humerus  he  says :  "  It  has  been  observed 
by  surgeons  that  non-union,  results  more  frequently  after  frac- 
tures of  the  shaft  of  the  humerus,  than  after  fractures  of  the 
shaft  of  any  other  bone.  This  observation  is  confirmed  by  my 
own  researches."  This  unfortunate  result,  it  is  suggested  and 
argued  at  considerable  length,  arises  from  the  universal  habit  of 
surgeons  to  dress  fractures  of  the  humerus  by  placing  the  fore- 
arm at  right  angles  with  the  arm,  instead  of  placing  it  in  a  straight 
position.  If  this  is  the  cause  of  the  frequent  deformities  in  these 
cases,  it  is  essential  that  those  who  practice  surgery  should  know 
it  Out  of  thirty-eight  cases  of  fracture  of  the  radius,  reported 
by  Prof.  H.,  twenty-five  are  imperfect  in  the  result — some 
slightly.  This  shows  the  difficulties  attending  the  treatment  of 
fractures  of  this  bone. 

Anchylosis  of  the  wrist  and  ankle  are  very  common  when 
there  has  been  a  fracture  of  the  radius  or  tibia  at  its  lower  end ; 
and  this  stiffness  is  often  the  ground  of  complaint  against  sur- 
geons and  troublesome  litigation. 

Prof.  H.  accounts  for  this  stiffness,  not  by  supposing  the  bone 
was  not  properly  set,  but  he  says :  "  There  can  be  no  doubt  that 
this  phenomenon  is  due  to  an  effusion — first  serous,  and  then 
fibrinous — along  the  sheaths  of  the  tendons;  and  it  is  equally 
present  after  sprains  and  other  severe  injuries  about  this  part,  as 
in  fractures.  In  many  cases,  however,  its  prolonged  continuance 
and  its  firmness  have  led  to  a  suspicion  that  the  bones  were  dis- 
placed— a  suspicion  which  only  a  moderate  degree  of  care  in  the 
examination  ought  easily  to  dispel.  Here,  then,  we  shall  find  a 
sufficient  explanation  of  the  anchylosis  in  the  wrist  and  finger 
joints,  which,  often  for  a  time  almost  complete,  continues  occa- 
sionally for  many  months,  or  even  years,  if,  indeed,  it  is  not  per- 
petual: an  anchylosis,  produced,  not  as  has  generally  been 
affirmed,  by  an  extension  of  the  inflammation  to  these  joints, 
but  simply  by  the  inflammatory  effusions  and  consequent  adhe- 
sions along  the  theca  and  serous  sheaths,  through  which  the  ten- 
dons all  pass  in  their  course  to  the  hands  and  fingers.  The 


DEFORMITIES    AFTER    FRACTURES.  95 

fingers  are  quite  as  often  thus  anchylosed  as  the  wrist  joint 
itself — a  circumstance  which  is  quite  inexplicable  on  the  doctrine 
that  the  anchylosis  is  due  to  an  inflammation  in  the  joints.  In- 
deed, I  have  seen  the  fingers  rigid  after  many  months,  when, 
having  observed  the  case  throughout,  myself,  I  was  certain  that 
no  inflammatory  action  had  reached  them.  Nor  is  it  any  more 
difficult  to  show  that  the  anchylosis  of  the  wrist  joint  is  not  due 
to  a  malposition  of  its  articular  surfaces,  as  has  often  been  asserted 
in  written  treatises,  and  reaffirmed  by  excellent  surgeons,  when 
recording  their  testimony  under  oath ;  for,  if  the  anchylosis  of 
the  fingers,  in  all  these  cases,  is  known  not  to  be  the  result  of 
malposition  of  their  joint  surfaces,  but  only  of  inflammation  of 
their  tendinous  sheaths,  why  shall  we  refuse  to  accept  the  same 
explanation  for  anchylosis  at  the  wrist  ?" 

Dr.  Mott,  of  New  York,  says :  "Fractures  of  the  radius,  within 
two  inches  of  the  wrist,  when  treated  by  the  most  eminent  sur- 
geons, are  of  very  difficult  management,  so  as  to  avoid  all  de- 
formity; indeed,  more  or  less  deformity  may  occur  under  the 
treatment  of  the  most  eminent  surgeons,  and  more  or  less  imper- 
fection in  the  motion  of  the  wrist  or  radius  is  very  apt  to  follow 
for  a  longer  or  shorter  time.  Even  when  the  fracture  is  well 
cured,  an  anterior  prominence  at  the  wrist,  or  near  it,  will  some- 
times result  from  swelling  of  the  soft  parts,  etc." 

The  reporter  of  the  opinion  of  Prof.  Mott,  himself  a  surgeon 
of  New  York  City,  says :  "As  the  above  opinion  of  Prof!  Mott 
coincides  with  my  own  observations,  both  in  Europe  and  in  this 
city,  as  well  as  with  many  of  the  most  distinguished  surgical 
authorities,  I  venture  to  hope  that  it  may  assist  in  removing  some 
of  the  groundless  and  ill-merited  aspersions  which  are  occasionally 
thrown  on  the  members  of  our  profession  by  the  ignorant  or 
designing."  Professor  H.  adopts  the  above  as  his  own  expe- 
rience. 

The  following  case  illustrates  the  above  principles:  "Mrs.  Ray- 
mond, of  Albion,  N.  Y.,  aged  twenty-nine  years,  was  turned  over 
in  a  stage  coach,  and  broke  the  radius  just  above  the  wrist  joint. 


90  MALPRACTICE. 

Dr.  Huff,  a  surgeon  of  well-known  skill,  residing  in  Albion,  was 
called,  and  treated  the  fracture.  About  three  months  after,  Mrs. 
Raymond  called  upon  me  to  ascertain  whether  the  arm  could  be 
improved,  and  whether  I  believed  the  treatment  had  been  cor- 
rect. The  hand  falls  slightly  to  the  radial  side,  and  the  lower 
end  of  the  ulna  is  prominent.  The  motions  of  the  wrist  joint  are 
not  free.  She  subsequently  commenced  an  action  against  the 
doctor  for  damages." 

Of  twenty-two  cases  of  fracture  of  the  ulna,  Prof.  H.  reports 
ten  imperfect. 

Of  forty  fractures  of  both  the  radius  and  ulna,  thirty -three 
were  simple,  and  there  were  fourteen  imperfect  cures. 

Prof.  H.  remarks :  "  The  prognosis,  in  these  accidents,  seems 
to  take  the  widest  range ;  for  while  a  larger  proportion  than  in 
the  case  of  almost  any  other  long  bones,  united  without  apprecia- 
ble deformity,  a  considerable  proportion  delay  to  unite,  or  do  not 
unite  at  all ;  and  some,  even  when  the  fracture  is  most  simple, 
result  in  the  complete  loss  of  the  limb  by  gangrene.  Of  the 
occurrence  of  gangrene,  and  the  consequent  loss  of  the  entire 
arm,  after  a  simple  fracture,  I  have  reported  one  example.  A 
second  example  has  occurred  in  the  practice  of  Dr.  Snell,  a  very 
respectable  young  physician,  of  Brooklyn,  N.^Y.,  in  which  a 
fracture  of  the  humerus,  involving  the  elbow  joint,  occurring  in  a 
boy  of  slender  stamina,  resulted  in  the  loss  of  that  part  of  the 
hand  by  mortification — the  little  finger  perishing  from  dry  gan- 
grene, and  the  adjacent  parts  afterward  sloughing  by  ordinary 
humid  mortification.  A  prosecution  ensued,  in  which  Drs.  Wil- 
lard  Parker,  and  Prince  declared  their  conviction  that  these  unto- 
ward consequences  were  due  to  the  bandages  having  been  applied 
too  tightly ;  while  Drs.  Mott,  Rogers,  Wood,  Ayers,  Dixon  and 
others,  believed  that  the  mortification  of  the  fingers  resulted  from 
causes  over  which  he  had  no  control.  The  jury  returned  a  ver- 
dict against  the  Doctor  for  $3,000.  It  is  understood,  however, 
that  a  new  trial  will  be  granted,  as  the  verdict  was  clearly  against 
the  weight  of  testimony." 


DEFORMITIES    AFTER    FRACTURES.  97 

These  general  principles,  connected  with  the  superior  extremi- 
ties, are  also  applicable  to  the  lower ;  still,  it  will  be  well  to  follow 
Prof.  H.,  in  his  investigations,  connected  with  fractures  and  de- 
formities of  the  inferior  extremities,  that  the  present  state  of  the 
science  relating  to  fractures  may  be  well  understood  by  those  who 
have  to  deal  with  them  legally. 

Of  one  hundred  and  five  cases  of  fracture  of  the  femur,  only 
about  ten  are  reported  as  resulting  in  perfect  cures.  The  treat- 
ment is  attended  with  all  the  difficulty — and  possibly  more — 
that  attends  fractures  of  the  humerus.  The  small  quantity  of 
complete  cures,  or  results,  indicate  that  fractures  of  the  femur  are 
more  to  be  dreaded  than  those  of  the  humerus — the  hip  joint 
more  than  the  shoulder  joint. 

Shortening  is  almost  universal  in  these  cases  of  fracture  of  the 
femur.  While  this  has  been  understood,  perhaps,  by  the  best 
class  of  surgeons,  "there  seems  to  have  existed  only  certain 
vague  and  indefinite  notions  as  to  the  proportion  and  amount  of 
shortening,  and  which  have  had  for  their  basis  nothing  better  than 
a  few  imperfectly  analyzed  observations." 

The  following  are  the  conclusions  to  which  Prof.  H.  arrives  on 
this  point: 

"  1.  That  in  the  case  of  an  oblique  fracture  of  the  shaft  of  the 
femur  occurring  in  an  adult,  whose  muscles  are  not  paralyzed,  but 
offer  the  ordinary  resistance  to  extension  and  counter-extension, 
and  where  the  ends  of  the  broken  bone  have  once  been  com- 
pletely displaced ;  no  means  have  yet  been  devised  by  which  an 
overlapping  and  consequent  shortening  of  the  bone  can  be  pre- 
vented. 

2.  That  in  a  similar  fracture  occurring  in  children,  or  in  persons 
under  fifteen  years  of  age,  the  bone  may  sometimes  be  made 
to  unite  with  so  little  shortening  that  it  c:m  not  be  detected 
by  measurement ;  but  whether,  in  such  cases,  there  is,  in  fact,  no 
shortening,  since  with  children,  especially,  it  is  exceedingly  diffi- 
cult to  measure  very  accurately,  I  can  not  say. 

3.  That  in  transverse  fractures,  or  oblique  and  dentriculated, 

7 


98  MALPRACTICE. 

occurring  in  adults,  and  in  which  the  broken  fragments  have  be- 
come completely  displaced,  it  will  generally  be  found  equally 
impossible  to  prevent  shortening ;  because  it  will  be  found  to  be 
generally  impossible  to  bring  the  broken  ends  again  into  such  a 
position  as  that  they  will  rest  upon  and  support  each  other. 

4.  That  in  all  fractures,  whether  occurring  in  adults  or  in  child- 
ren, where  the  fragments  have  never  been  completely  or  at  all 
displaced,  constituting  only  a  very  small  proportion  of  the  whole 
number  of  these  fractures,  a  union  without  shortening  may  always 
be  expected. 

5.  That  where,  in  consequence  of  displacement,  an  overlapping 
occurs,  the  shortening  in  simple  fractures,  when  the  best  appli- 
ances and  the  utmost  skill  have  been  employed,  is  between  one- 
half  and  tnree-quarters  of  an  inch." 

Prof.  H.  insists  that  the  straight  position  is  the  proper  one  for 
dressing  fractures  of  the  femur,  and  supports  his  opinion  by  the 
testimony  of  nearly  all  the  leading  surgeons  in  this  country  and 
Europe,  with  whom  he  has  had  an  extensive  private  correspond- 
ence He  also  urges  a  suggestion  of  the  distinguished  surgeon 
of  Philadelphia,  Dr.  Geo.  W.  Norris,  as  to  the  importance  of 
frequent  dressings  in  these  difficulties,  and  frequent  dressings  in 
the  latter  part  of  the  treatment  of  fractures'  about  the  joints,  as 
well  as  of  careful  passive  motion  to  the  joints,  at  the  same  time 
carefully  observing  a  state  of  perfect  rest. 

The  following  cases,  where  actions  for  damages  were  brought 
for  alleged  Malpractice  in  the  treatment  of  these  fractures,  are 
also  from  Prof.  HAMILTON'S  report : 

John  C.  Basset  v.  John  B.  Collins  and  Anthony  Barney. 
Supreme  Court,  N.  Y. 

"In  the  fall  of  1843,  John  C.  Basset,  of  Independence,  aged 
forty-eight,  then  in  good  health,  but  corpulent,  was  injured  by  the 
upsetting  of  his  wagon,  and  the  falling  of  a  box,  as  was  believed, 
upon  his  thigh.  He  was  carried  into  a  public  house  in  Wood- 
hall,  and  there  attended  by  Drs.  Reed  and  Carey.  After  a  care- 
ful and  complete  examination,  by  measuring,  etc.,  they  concluded 


DEFORMITIES    AFTER   FRACTURES.  99 

* 

that  Mr.  Basset  had  only  received  a  severe  bruise.  He  remained 
two  weeks  under  their  care,  and  was  taken  home  in  a  bed.  Four 
weeks  after  the  accident,  Drs.  Collins  and  Barney  were  caled  in, 
as  the  left  leg  was  now  said  to  be  shortened  and  turned  out 
These  gentlemen  made  an  examination,  and  found  the  leg  in  the 
following  condition:  Shortened  an  inch  and  a-ha!f;  the  toes 
turned  out,  and  could  not  be  turned  in ;  the  left  heel  correspond- 
ing to  the  hollow  of  the  right  foot ;  a  bunch  in  the  groin,  like  the 
head  of  the  femur.  They  decided  that  it  was  a  dislocation  of 
the  head  of  the  femur  upon  the  pubis,  and  with  pulleys  properly 
adjusted  and  carefully  operated  upon,  proceeded  to  attempt  its 
reduction.  After  two  or  three  minutes'  extension  and  counter- 
extension,  a  sound  was  heard,  and  a  sensation  felt  by  nearly  all 
who  were  assisting,  which  was  then  described  as  the  sound  and 
sensation  usually  produced  when  a  dislocation  is  reduced.  The 
patient  was  now  released  from  the  pulleys,  and  made  to  get  up. 
The  limb  was  of  its  original  length,  and  in  its  natural  position, 
and  the  tumor  in  ihe  groin  had  disappeared.  The  patient  was 
again  laid  upon  the  bed,  and  dismissed  as  cured.  It,  however, 
appeared  in  the  testimony,  that  a  few  days  after  it  was  again 
shortened  and  turned  out ;  but  it  does  not  appear  that  these  facts 
came  to  the  knowledge  of  the  defendants.  It  also  appeared  that 
the  plaintiff  did  not  get  the  use  of  his  limb  so  as  to  be  able  to 
dispense  with  crutches  or  a  cane  in  one  or  two  years.  The  limb 
is  now  shortened  an  inch  and  a-half,  and  moderately  turned  over ; 
but  the  motions  of  the  joint  are  free,  and  the  plaintiff  walks  with 
:a  very  slight  halt,  and  without  inconvenience. 

Drs.  Collins  and  Barney  were  sued,  and  the  case  was  tried 
January,  1848,  before  Judge  Morain;  but  the  jury  having  dis- 
agreed, it  was  tried  again  before  Judge  Mallett,  in  the  Circuit 
of  the  Supreme  Court,  held  in  August,  1848. 

In  the  first  trial  the  plaintiff  charged  that  the  limb  was  sound 
when  the  defendants  took  hold  of  it  with  the  pulleys,  and  that 
they  then  fractured  it  through  the  neck  and  without  the  capsule. 

In  the  last  trial  this  was  not  claimed ;  but  it  was  alleged  that 


100  MALPRACTICE. 

the  original  accident  was  probably  a  fracture  without  the  capsule, 
and  without  displacement ;  that  when  examined  by  Drs.  Collins 
and.  Barney,  a  displacement  had  occurred,  and  that  the  defend- 
ants were  chargeable  with  criminal  negligence  or  ignorance  in  not 
discovering  that  it  was  a  fracture ;  and  consequently  for  subject- 
ing the  plaintiff  to  the  useless  pain  of  extension  with  the  pul- 
leys, and  in  not  applying  subsequently  a  retentive  apparatus, 
since,  through  this  omission,  the  plaintiff  had  a  shortened  and 
crooked  leg. 

On  the  defense,  it  was  admitted  that  the  original  accident  was 
a  fracture,  without  displacement ;  but  that  it  was  within  the  cap- 
sule, and  near  the  head  of  the  bone ;  that  its  being  within  the 
capsule,  and  near  the  head,  could  alone  satisfactorily  account  for 
the  ' bunch'  in  the  groin,  which  disappeared  with  the  reduction, 
and  for  the  slowness  of  the  subsequent  restoration  of  the  limb. 
It  was  claimed,  also,  that  the  signs  described  by  the  witnesses 
were  the  ordinary  signs  of  dislocation  upon  the  pubis,  and  would 
be  likely  to  deceive  the  most  skillful  surgeon ;  that  several  emi- 
nent surgeons  had  mistaken  fractures  of  the  thigh  for  disloca- 
tions ;  that  the  extension  with  the  pulleys  did  him  no  permanent 
harm ;  that  the  subsequent  treatment  pursued  by  the  patient  in 
this  case,  vis.:  keeping  his  bed  for  a  few  days,  and  getting  about 
on  crutches,  would  have  been  the  proper  treatment  had  the  exact 
nature  of  the  accident  been  fully  known ;  and,  finally,  that  the 
patient  had  as  good  a  limb  as  can  ordinarily  be  expected  in  this 
fracture,  under  the  most  skillful  management 

The  examination  of  the  numerous  witnesses  having  closed,  and 
the  counsel. having  addressed  the  jury,  the  Judge  followed  with  a 
most  pungent  and  impressive  charge,  in  which  the  jury  were 
instructed  to  disregard  all  mere  appeals  to  their  prejudices,  and 
especially  to  reject  that  counsel  which  would  advise  them  to  look 
upon  the  medical  profession  as  an  oppressive  and  aristocratic 
monopoly,  and  to  decide  the  case  upon  the  facts,  as  drawn  from 
the  witnesses  upon  the  stand.  The  jury  retired,  and  in  a  few 
minutes  returned  a  verdict  for  the  defendants. 


DEFORMITIES    AFTER    FRACTURES.  101 

The  defendants  in  this  case  were  men  who  had  long  practiced 
medicine  and  surgery  in  the  county  of  Alleghany,  and  they  both 
occupy  a  high  position  in  the  estimation  of  the  public,  as  men  of 
skill  and  worth ;  and  it  is  gratifying  to  know  that,  in  the  mind 
the  Hon.  Judge,  as  well  as  of  the  intelligent  jury,  they  received  a 
full  and  unqualified  acquittal  from  the  charge  of  any  degree  of 
negligence  or  unskillfulness." 

Another  action  resulted  from  the  following  case: 

"In  Dec.,  1843,  W.  S.,  forty  years  old,  a  house-joiner,  was 
employed  shingling  the  roof  of  a  rail-road  depot,  when  he  fell 
and  fractured  the  light  femur,  about  its  middle,  transversely.  Dr. 
W.  of  Buffalo,  was  called,  and  applied  Sir  Astley  Cooper's 
double  inclined  plane,  having  previously  covered  the  leg  with  a 
roller,  and  secured  lateral  splints  to  the  thigh.  At  the  end  of 
six  weeks  the  dressings  were  finally  removed,  the  fragments 
being  united  firmly. 

Subsequently  S.  claimed  damages  for  Malpractice  in  the  treat- 
ment of  the  leg,  and  Dr.  W.  was  sued,  and  the  case  was  tried  in 
the  Erie  Co.  Supreme  Court,  first  in  1844,  and  again  in  June, 
1845.  In  neither  of  these  trials  was  the  jury  able  to  agree. 
Finally,  in  June,  1848,  it  was  tried  in  the  same  court — Justice 
James  G.  Hoyt  presiding.  The  limb  was  shortened  one  inch. 
Drs.  Mowbridge,  Barnes  and  Burnell,  witnesses  on  the  part  of  the 
prosecution,  thought  it  a 'medium  cure.'  Dr.  Sprague  did  not 
think  so.  Dr.  Flint,  on  the  part  of  the  defense,  thought  it  an 
average  cure.  I  thought  it  nearly,  but  not  quite  an  average 
cure.  The  plaintiff  claimed  that  the  bend  and  shortening  was 
the  result  of  the  use  of  the  double  inclined  plane,  and  from  neg- 
ligence in  its  use ;  and  that  it  occurred  while  the  limb  was  in  the 
splint.  The  defendant  replying  that  it  came  out  of  the  splint 
straight,  anil  that  the  deformity  now  present  took  place  after  his 
responsibility  had  ceased. 

Dr.  Trowbridge  said  that  'more  or  less  deformity  usually  fol- 
lows a  fracture  of  the  thigh  bone,  even  in  the  best  cases.'  Dr. 
Burnell  said  'it  was  a  difficult  bone  to  heal  and  make  straight.' 


102  MALPRACTICE. 

Dr.  Austin  Flint  said, '  fracture  of  the  thigh  bone  is  one  of  the- 
most  difficult  to  treat — perhaps,  the  most  so.'  Dr.  Willard  Parker 
said,  *  In  children  you  may  generally  get  union  without  shorten- 
ing; in  a  well,  active  man  you  may  not — it  depends  upon  the 
power  of  the  muscles.' 

The  Judge  charged  the  jury  as  to  the  points  of  law,  stating, 
that  if  they  were  satisfied  that  the  defendant  had  exercised  or- 
dinary skill  and  ordinary  care,  they  were  to  find  for  him.  He 
then  went  into  a  general  review  of  the  testimony,  stating,  also, 
that  in  cases  like  these  the  medical  testimony  should  have  more 
weight  in  matters  of  opinion  than  the  testimony  of  other  wit- 
nesses, as  they  were,  it  is  supposed,  better  informed  upon  matters 
of  the  nature  here  presented. 

The  verdict  was  for  the  defendant." 

Here  is  another  interesting  case  of  alleged  Malpractice. 

"Geo.  S.  Aikin,  of  Lockport,  N.  Y.,  aged  seven  years,  broke  hia 
right  thigh  obliquely,  just  above  the  knee  joint,  jumping  down 
a  bank  of  about  three  feet. 

Dr.  G.,  an  accomplished  surgeon,  residing  in  Lockport,  was 
called.  The  limb  was  not  then  much  swollen.  He  applied  side 
splints,  rollers,  etc.,  carefully,  and  then  laid  the  limb  over  a  Day's 
double  inclined  plane.  The  knee  was  elevated  about  six  or  eight 
inches.  Before  applying  the  splints,  suitable  extension  had  been 
made,  and  after  completing  the  dressings  the  two  limbs  seemed 
to  be  of  the  same  length.  These  dressings  were  examined  and 
readjusted  daily.  On  about  the  seventh  day  the  lad  was  com- 
plaining a  good  deal  of  pain,  etc.  He  had  all  along  been  restless, 
and  had  complained,  at  times,  of  pain  in  his  leg  and  foot.  Dr. 
E.  now  noticed,  for  the  first  time,  that  his  toes  looked  unnaturally 
white,  and  that  they  were  cold.  Counsel  was  now  called,  at  the 
request  of  Dr.  G.,  when  it  was  determined  to  abandon  all  dress- 
ings, and  direct  their  efforts  solely  to  saving  the  limb.  The 
result  was  that  slowly  a  considerable  portion  of  his  foot  died  and 
sloughed  away,  leaving  only  the  tarsal  bones.  The  fracture 
united,  but  with  considerable  overlapping  and  deformity. 


DEFORMITIES   AFTER    FRACTURES.  103 

Dr.  G.  sued  the  father  of  the  child  for  the  amount  of  his  ser- 
vices, when  Mr.  Akin  put  in  a  plea  of  Malpractice,  and  that,  con- 
sequently, the  services  were  without  value. 

The  case  was  tried  at  the  March  Term  of  the  Niagara  Circuit 
for  1856,  Judge  GREEN  presiding. 

On  the  part  of  the  defense,  it  was  claimed  that  the  death  of 
the  foot  was  in  consequence  of  the  bandages  being  too  tight. 
While,  on  the  part,  of  Dr.  G.,  the  plaintilf,  it  was  shown  that  the 
death  of  the  toes  was  preceded  by  the  loss  of  color,  and  that  it 
was  not  accompanied  with  either  venous  or  arterial  congestion. 
The  medical  gentlemen  examined  as  witnesses,  declared  that  this 
circumstance  furnished  the  most  positive  evidence  which  could  be 
desired,  that  the  death  of  the  toes  was  not  due  to  the  tightness 
of  the  bandages ;  but  that  its  cause  must  be  looked  for  in  an 
arrest  of  the  arterial  or  nervous  currents  supplying  the  limb,  or 
in  both.  They  believed,  also,  that  the  projection  of  the  superior 
fragments  into  the  popliteal  space  was  sufficient  to  cause  this 
arrest.  They  also  believed  that  this  overlapping  and  consequent 
projection  could  not  have  been  prevented  in  this  case,  and  that, 
therefore,  the  treatment  was  not  responsible  for  this  unfortunate 
result;  indeed,  they  regarded  the  treatment  as  correct,  and  the 
result  as  a  triumph  of  skill,  in  that,  that  any  portion  of  the  limb 
was  saved,  the  leg  and  foot  now  remaining,  being  far  more  useful 
than  any  artificial  leg  and  foot  could  be. 

The  Judge,  in  a  charge  remarkable  for  its  clearness  and  lib- 
erality, sought  to  impress  upon  the  jury  the  value  of  the  medical 
testimony.  The  jury  returned  a  verdict  for  Dr.  G.,  allowing  the 
amount  of  his  claim  for  services,  with  the  costs  of  suit." 

In  twenty  fractures  of  the  tibia — fifteen  of  which  were  simple — 
all  the  results  were  perfect,  except  the  five  that  were  complicated, 
and  these  were  all  imperfect. 

In  nineteen  cases  of  fracture  of  the  fibula  ten  were  imperfect 

In  one  hundred  and  eight  cases  of  fracture  of  both  the  tibia 
and  fibula,  thirty-seven  are  marked  perfect,  and  seventy-one  im- 
perfect ;  forty-nine  are  not  shortened,  and  sixty-one  shortened. 


104  MALPRACTICE. 

Prof.  H.  remarks :  "  The  large  size  and  irregular  form  of  the 
bones  of  the  leg,  the  small  amount  of  the  muscular  tissue  cover- 
ing them,  especially  near  the  articulations,  the  severity  of  the 
injuries  to  which  they  are  liable,  with  their  remoteness  from  the 
center  of  circulation — these  circumstances  render  them  exceed- 
ingly exposed  to  injury  from  the  too  great  or  unequal  pressure  of 
splint  or  of  bandages;  and  it  has  often  occurred  to  myself,  as  it 
has  to  Dr.  Norris,  to  find  the  skin  vesicated,  or  even  ulcerated 
and  sloughing,  when  the  patients  are  first  admitted  to  the  hos- 
pital ;  a  condition  which,  in  nine  cases  out  of  ten,  is  due  to  the 
mal-adjustment  of  the  splints,  or  to  the  tightness  of  the  ban- 
dages. Too  much  care  can  never  be  exercised  in  the  application 
of  the  first  dressings,  nor  ought  they  ever  to  be  permitted  to 
remain  longer  than  twenty-four  hours,  without  being  removed,  or 
freely  opened,  so  as  to  permit  an  examination  of  the  limb 
thoroughly  on  all  sides." 

The  author  has  thus  made  a  very  careful  and  full  digest  of  the 
voluminous  Reports  of  Prof.  HAMILTON — running  through  three 
volumes  of  Transactions  of  the  American  Med.  Association — 
arranging  and  condensing  that  portion  that  bears  directly  upon 
the  subject  under  investigation.  The  matter  here  given  from 
those  Reports  is  of  the  greatest  practical  value  to  the  medical 
man  and  to  the  attorney ;  both  can  at  once  see  what  is,  and  what 
should  be  expected  of  the  surgeon  in  the  treatment  of  fractures, 
without  being  burdened  with  the  details  of  practice.  Every  sur- 
geon and  physician  should  overhaul  and  study  carefully  these 
Reports.  No  one  can  comprehend  tho  amount  of  labor  bestowed 
upon  them — the  vast  range  of  authorities  consulted  and  quoted — 
without  thorough  examination  and  study  ;  and  this  he  can  not 
bestow  without  profit  to  himself  and  patients. 

NOTE. — "  With  regard  to  prognosis  of  fractures  through  the  shaft  of  the 
fumer,  I  have  no  hesitation  in  saying  that  I  have  never  seen  a  perfect  cure,  cither 
in  my  own  case  or  in  that  of  others ;  by  this  1  mean  I  have  never  seen  a  case 
without  shortening — never  less  than  one-fourth  inch  after  fracture  oi  the  thigh, 
even  in  children,  and  I  consider  a  shortening  of  from  half  inch  to  an  inch  a  satis- 
factory result  in  adults."  Ashurst's  Surg.  260. 

While  this  is  undoubtedly  true,  yet  it  is  the  duty  of  the  attending  surgeon  t6 
make  every  effort  to  maintain  the  full  length  of  the  limb.  Almond  ».  Nugent, 
34  Iowa,  300.  A  leading  case. 


CHAPTER  VII. 

MALPRACTICE  IN  DISLOCATIONS. 

SOME  dislocations  are  very  simple,  requiring  but  little  care, 
while  others  are  attended  with  the  gravest  symptoms.  In  the 
latter  cases  the  treatment  is  difficult  and  dangerous.  The  kind 
and  size  of  the  joint  makes  the  difference,  together  with  the  compli- 
cations. From  the  wrist  and  ankle  upward  the  difficulty  is  greater 
and  the  danger  more  to  be  apprehended ;  especially  the  elbow  and 
knee  joints,  are  always  attended  with  great  difficulty. 

There  is  no  class  of  injuries  to  which  the  human  frame  is 
exposed,  that  will  not  suffer  less  from  delay  than  in  the  case  of 
dislocation.  To  act  promptly  and  correctly  at  the  time  of  the 
injury,  is  of  the  greatest  importance.  Every  hour  lost  enhances, 
as  a  general  thing,  the  difficulties  of  reduction,  and  greatly  en- 
dangers the  reputation  of  the  surgeon,  and  it  may  make  him 
liable,  should  the  delay  be  owing  to  his  advice  or  conduct 

Some  seem  to  think  that  no  great  degree  of  anatomical  knowl- 
edge is  requisite  or  essential  to  the  speedy  and  correct  adjustment 
of  dislocations,  from  the  success  that  is  claimed  for  the  "  natural 
bone-setter,"  and  from  the  usual  quickness  of  the  operation.  This 
confidence  in  this  class  of  quacks  rests  upon  popular  error.  It 
is  a  remnant  of  ancient  superstition  in  regard  to  medicine. 

Without  a  high  degree  of  anatomical  knowledge,  these  kind  of 
injuries  can  not  be  treated  with  any  degree  of  success.  In 
determining  the  question  as  to  whether  a  dislocation  exists  at  all — 
a  very  important  point  to  be  settled — if  there  exists  a  dislocation, 
as  to  what  its  nature  and  complications  are ;  in  applying  the  neces- 
sary skill  in  its  reduction,  the  most  thorough  knowledge  is  called 

(105) 


106  MALPRACTICE. 

for.  It  not  unfrequently  happens  that  a  little  hurry  or  careless- 
ness leaves  an  important  joint  dislocated  for  life,  and  the  sur- 
geon— there  being  reasonable  grounds  for  believing  that  ordinary 
care  and  skill  might  have  detected  the  true  state  of  the  case,  and 
rectified  the  difficulty — becomes  responsible  for  the  damage. 

Sir  Astley  Cooper  mentions  a  case  of  dislocation  of  the  os 
femoris,  which  was  not  reduced  at  the  time  of  the  accident,  and 
ever  after  continued  so ;  a  consultation  was  held  upon  the  nature 
of  the  injury,  and,  after  long  consideration  and  deliberation,  a 
report  was  made  by  one  of  the  surgeons  to  this  effect,  "  Well,  sir, 
thank  God,  we  are  all  agreed  there  is  no  dislocation !" 

Sometimes  the  swelling  is  so  great,  immediately  after  the 
receipt  of  the  injury,  or  before  the  surgeon  is  able  to  see  the  case, 
that  it  is  impossible  to  decide  whether  the  case  is  one  of  disloca- 
tion or  not. 

No  correct  anatomical  knowledge  can  be  obtained  of  the  parts 
subject  to  these  injuries,  without  thorough  and  repeated  dissec- 
tions of  the  structures  of  the  joints.  An  acquaintance  with  the 
muscles  of  the  limb,  and  their  dissection,  however  neatly  done,  does 
not  develop  the  condition  of  the  joints  and  their  structure,  or  how 
a  dislocation  may  take  place;  its  condition  when  dislocated,  upon 
which  depends  the  direction  and  degree  of  extension  to  be  applied 
in  its  reduction.  Students  are  too  apt  to  throw  away  the  joint, 
after  having  dissected  the  other  parts,  thus  losing  that  practical 
knowledge  upon  which  good  treatment  of  dislocations  depends, 
and  giving  rise  to  so  many  errors  and  failures  in  practice,  thus  lay- 
ing the  grounds  for  litigation  and  heavy  damages. 

The  dislocations  of  the  hip,  shoulder  and  elbow,  can  not  be 
delected  certainly,  as  to  their  precise  nature  and  extent,  except  by 
those  who  possess  correct  anatomical  knowledge. 

Sir  Astley  Cooper  says  he  has  known  hospital  surgeons  who 
have  not  paid  sufficient  attention  to  the  study  of  anatomy,  mistake 
the  more  difficult  kinds  of  dislocations,  and  mentions  a  case  that 
occurred  in  a  hospital,  where  the  difficulty  was  a  fracture  of  the  neck 
of  the  thigh  bone ;  but,  being  mistaken  for  a  disloc  ition,  the  patient 


MALPRACTICE   IN   DISLOCATIONS.  107 

was  exposed,  through  the  surgeon's  ignorance,  to  a  violent  and 
protracted  extension.  This  has  occurred  more  frequently  than 
good  surgeons  would  admit,  in  this  country  as  well  as  in  England. 

Without  a  well-defined  idea  of  the  form  of  the  extremities  of 
the  bones,  their  mode  of  articulation,  the  ligaments  by  which  they 
are  connected  and  supported,  the  direction  in  which  their  most 
powerful  muscles  act;  the  man  who  attempts  to  adjust  a  disloca- 
tion, or  a  supposed  one,  works  in  the  dark.  When  all  these 
normal  conditions  are  well  fixed  in  the  mind,  any  departure  from 
it  is  at  once  detected,  and  the  proper  remedy  applied.  A  person 
not  having  this  anatomical  knowledge,  should  never  undertake  to 
reduce  dislocations  upon  the  grounds  of  his  medical  character  or 
special  knowledge  in  other  departments  of  the  profession. 

It  has  already  been  stated  that  sudden  tumefaction  sometimes 
supervenes,  and  renders  a  diagnosis  either  difficult  or  impossible; 
so  that  a  good  surgeon  may  well  hesitate  until  the  swelling  has 
abated.  In  these  cases,  the  cautious  surgeon  is  careful  what 
opinion  he  gives ;  and  those  who  are  called  in  consultation,  after 
time  has  elapsed,  and  the  swelling  abated,  when  the  locality  of  the 
head  of  the  bone  can  be  easily  determined,  and  the  nature  and 
extent  of  the  injury  fully  understood ;  can,  unwittingly,  leave  the 
first-called  surgeon,  having  charge  of  the  case,  to  unjust  and 
dangerous  censures,  if  they  do  not  explain  the  reasons  why  it 
might  have  been  impossible,  at  an  earlier  day,  to  arrive  at  a  sat- 
isfactory conclusion  or  diagnosis. 

An  occasional  occurrence  of  difficulty,  in  reducing  what  seems 
to  be  but  a  simple  dislocation,  arises  from  the  obstruction  of  mus- 
cles or  tendons,  which,  becoming  rigid  or  twisted  from  their  posi- 
tion, prevent  the  return  of  the  head  of  the  dislocated  bone  into 
its  socket.  At  other  times  there  are  obscure  and  mysterious 
causes  of  difficulty,  in  reducing  dislocations,  that  evade  the  closest 
scrutiny  of  the  most  experienced  and  intelligent,  and  which  will 
forever  remain  unknown,  unless  revealed  by  post  mortem 
examination. 

A  principle  cause  of  difficulty,  in  the  reduction  of  a  dislocation 


108  MALPRACTICE. 

of  long  standing,  arises  from  the  increasing  inorganic  contrac- 
tion of  the  muscles  engaged ;  also,  the  new  fibrous  adhesions 
which  the  new  bone  acquires ;  but  this  difficulty  of  reduction 
does  not  increase  by  lapse  of  time  as  rapid, y  as  does  that  of 
diagnosis.  The  tension  of  the  muscles  is  not  supposed  to  in- 
crease after  a  few  days,  while  the  passive  contractions  of  the 
muscles  will  demand  an  increasing  force  of  extension  by  the 
mechanical  agents  employed;  the  progress  of  this  additional 
resistance  is  slow,  and  will  not.  for  many  days,  present  any  seri- 
ous obstacles  to  the  elongation  of  the  limb  by  pulleys  or  similar 
agents.1 

The  ablest  surgeons  differ  as  to  the  length  of  time,  after  which 
a  surgeon  is  no  longer  to  be  justified  in  trying  to  reduce  a  dislo- 
cation by  the  application  of  extension.  Sir  A.  Cooper  objects 
to  any  efforts  being  made  to  reduce  a  dislocation  of  long  stand- 
ing ;  and  this  time  he  places  at  two  months  for  the  humerus,  and 
three  for  the  femur;  while  Mr.  Skey  is  not  willing  to  limit  the 
time  definite,  within  nine  months  or  a  year,  when  all  effort  is  to 
be  abandoned.  He  claims  to  have  reduced  a  humerus  after  three 
months.2 

In  dislocations  of  long  standing  the  cavity  in  which  the  head 
•of  the  bone  played  becomes  filled  with  new  growth,  the  cartilages 
thicken,  and  the  head  of  the  bone  becomes  fastened  in  its  new 
position,  by  fibrous  growths,  where  it  rests,  in  time,  almost  as 
firmly  as  in  its  original  position. 

Where  there  is  a  mistake  in  the  diagnosis,  and  extension  is 
applied  to  a  fractured  limb,  instead  of  a  dislocated  one,  for 
obvious  reasons  the  result  may  be  serious  to  the  patient  and  dis- 
honorable to  the  profession,  as  well  as  rendering  the  operator 
making  the  mistake  liable. 

An  ignorant  surgeon  will  sometimes  apply  the  bandages  around 
the  elbow  joint,  to  which  he  applies  his  extension  in  such  a  way 


1  Skcy's  Operative  Surgery,  73. 

*  Medical  Times,  London,  for  June,  1848. 


MALPRACTICE   IN   DISLOCATIONS.  109 

that  it  slips,  and  defeats  the  whole  proceeding,  or  he  will  bind  the 
elbow  to  a  right  angle,  in  order  to  get  an  immovable  joint,  giving 
unnecessary  pain,  and  throwing  the  whole  extending  force  on  the 
forearm.  This  is  an  inexcusable  error ;  so,  of  the  lower  extrem- 
ities, the  same  principles  apply.  Again,  the  extending  force 
being  applied  to  the  elbow,  instead  of  the  wrist,  the  bone  is,  in 
fact,  being  drawn  up  by  the  pectoralis  major  and  latiasimus 
dorsi,  while,  through  the  medium  of  the  triceps  extensor  muscle,. 
is  being  drawn  down,  from  which,  the  whole  object  is  to  separate 
and  dislodge  the  head  of  the  humerus.  Both  the  scapula  and 
the  pelvis  should  remain  as  far  as  possible  dormant,  when  exten- 
sion is  applied  for  the  reduction  of  a  dislocated  femur  or  humerus. 

It  is  by  reason  of  the  neglect  of  simple  points  like  these,  that 
the  profession,  as  well  as  the  patient,  often  suffer ;  and  because 
this  is  so,  and  the  blameworthy  are  som:times  overtaken  and 
punished,  the  idea  becomes  prevalent  that  whenever  there  is 
a  failure  to  reduce  the  dislocation,  the  surgeon  is  to  blame,  let  the 
circumstances  attending  the  case  be  what  they  may,  and  that  he 
should  respond  in  damages. 

All  the  medical  profession  asks,  in  respect  to  these  cases,  is, 
that  the  courts  shall  carefully  draw  the  line  between  those  case& 
where  there  is  really  ignorance,  and  those  where  the  impossibilities 
are  so  great  they  can  not  be  overcome  by  skill ;  and  this  the 
courts  will  do,  if  the  truth  can  be  properly  brought  before  them. 

NOTE  1.— I  think  it  is  now  held  as  an  established  principle  in  Surgical  Science, 
that  after  fracture  of  the  bones  of  the  extremities,  deformity  in  various  degrees  is- 
the  rule,  not  the  exception.  A.  J.  Semmes.  M.  IX,  one  of  the  Visiting  Physicians 
to  the  New  Orleaiic  Charity  Hospital,  late  Surgeon  to  the  the  U.  S.  Prison,  Wash- 
ington City,  D.  C. 

NOTE  2— In  an  action  against  a  physician  for  malpractice  to  an  injured  arm,  he 
offered  to  prove  by  a  consulting  physician  that  an  examination  by  him.  "in  the 
presence  and  at  the  request  of  her  father,  he  proposed  to  put  plaintiff  under  the 
influence  of  an  anaesthetic,  and  attempt  to  reduce  it,  and  that  the  father  replied 
in  the  presence  of  plaintiff,  '  that  so  long  as  she  was  improving  so  fast  as  she  had 
done  since  he  came  home,  he  should  not  have  it  disturbed,'  and  that  the  injury 
could  then  have  bi  en  reduced."  Held,  that  the  off.-r  was  properly  rejected. 

The  rule  that  it  Is  incumbent  on  an  injured  party  to  do  whatever  he  reason- 
ably can  to  lessen  the  injury,  would  here  apply,  as  in  the  case  of  a  servant 
wrongfully  dismissed,  remaining  idle  when  able  to  work  ;  there  being  no  proof 
that  the  injury  could  then  have  been  reduced.     1871.    Chamberlain  v.   Morgan,. 
68  Pa. 


CHAPTER   VIII. 

ENGLISH  AND  AMERICAN  ADJUDICATED  CASES 
SEAR  «.  PRENTICE,  8  East's  Rep.  347. 

THE  leading  English  case,  where  there  was  no  evidence  of 
unskillfulness  introduced,  though  it  was  alleged  in  the  declaration, 
is  that  of  Sear  y.  Prentice.  This  was  an  action  brought  by  the 
plaintiff',  a  shoemaker,  against  the  defendant,  whom  he  had  em- 
ployed as  a  surgeon,  and  who,  it  was  claimed,  had  negligently 
undertaken  the  reduction  of  a  dislocated  elbow  and  fractured 
arm  of  the  plaintiff,  of  which  he  had  undertaken  the  cure. 

A  verdict  having  been  given  for  the  defendant,  under  the 
charge  of  the  court,  (Justice  Heath,)  that  direction  was  im- 
peached, and  a  motion  was  made  to  set  the  verdict  aside,  and 
that  a  new  trial  be  granted,  upon  the  ground  that  there  was 
evidence  laid  before  the  jury  of  the  unskillful  treatment  of  the 
plaintiff  by  the  defendant;  but  that  they  were  told  by  the 
learned  Judge  that  unless  negligence  was  proved  they  could  not 
examine  into  the  want  of  skill ;  and  the  evidence,  he  now  admit- 
ted, did  not  substantiate  the  charge  of  negligence,  though  it 
proved  the  want  of  skill.  Court  reviewed  the  case  upon  the 
Judge's  report,  and  it  appeared  to  be  this : 

The  plaintiff's  brother-in-law  proved  that  the  defendant  at- 
tended the  plaintiff,  who  had  fallen  from  a  horse,  and  told  the 
defendant  that  his  arm  was  broken ;  the  defendant  thought  not ; 
the  arm  was  swollen,  and  he  applied  vinegar  and  bound  it  with 
tape.  The  plaintiff  was  under  the  defendant's  care  ten  weeks, 
without  being  cured.  He  could  not  bend  his  arm  or  work  at  his 
trade.  He  then  applied  to  a  surgeon  by  the  name  of  Kingston, 
who  so  far  remedied  the  difficulty  that  the  plaintiff  could  put  his 
(110) 


ENGLISH   ADJUDICATED    CASES.  Ill 

arm  to  his  head.  The  arm  had  been  dressed  and  grown  almost 
straight;  he  could  not  turn  his  wrist,  and  had  no  motion  in  the 
elbow.  Kingston  broke  the  callous  and  set  it  again,  and  made  a 
very  fine  cure,  (as  the  witness  himself  described  it,)  which  was 
spoken  of  about  the  country.  He  imputed  the  failure  of  the  de- 
fendant to  negligence  and  carelessness — "an apprentice  boy  might 
have  known  better;"  "that  the  bone  might  have  been  set  within 
five  hours  after  the  accident,"  though  he  admitted  the  swelling, 
if  much,  must  first  be  reduced,  which  might  take  a  fortnight." 

"  The  learned  Judge  told  the  jury  that  the  gist  of  the  action 
was  negligence,  of  which  direct  evidence  might  be  given ;  or  it 
might  be  inferred  by  the  jury,  if  the  defendant  had  pro- 
ceeded without  any  regard  to  the  common  rules  of  the  profes- 
sion; that  unskillfulness  alone,  without  negligence,  would  not 
maintain  the  action ;  and  that  he  was  at  a  loss  to  say  to  the 
jury  what  degree  of  skill  ought  to  be  expected  of  a  village  sur- 
geon. But  whether  or  not  his  directions  were  accurate  in  this 
respect,  at  any  rate  the  witness  imputed  only  negligence  and 
carelessness  to  the  defendant  and  Pidcock,  who  assisted  him,  (the 
defendant,)  in  not  discovering  the  fracture  of  the  bone  of  the 
arm,  when  they  reduced  the  dislocated  elbow,  which  there  was  no 
doubt  was  properly  reduced;  and,  considering  all  the  circum- 
stances of  the  case,  he  did  not  think  there  was  such  gross  negli- 
gence as  to  make  the  defendant  liable  to  the  plaintiff  in  damages. 
The  report  says  that  the  jury  found  for  the  defendant,  much  to 
the  Judge's  satisfaction. 

Here  the  court  was  well  satisfied  that  an  action  lay  for  unskill- 
fulness, as  well  as  for  negligence ;  but  from  the  evidence  it  does 
not  appear  that  unskillful  practice  was  sustained  against  the 
defendant,  and  the  court  below  had  charged  correctly  when  it 
sfcited  negligence  and  carelessness  as  one  ground  of  action,  and 
had  left  it  to  the  jury  to  determine  whether  there  had  been  such 
negligence  and  carelessness.  The  jury,  by  their  verdict,  said 
the  defendant  was  clear  of  the  charge,  and  as  no  evidence  had 
been  introduced  or  offered,  the  defendant  was  clear." 


112  MALPRACTICE. 

The  Judge's  charge  was  erroneous,  in  that,  "  that  unskillful- 
ness  alone,  without  negligence,  would  not  maintain  the  action;" 
yet  as  no  evidence  was  offered  by  the  plaintiff  to  this  effect,  the 
charge  of  the  Judge  could  not  effect  the  result ;  and  it  is  difficult 
to  see  how  they  could  take  advantage  of  an  erroneous  charge 
that  could  not  possibly  affect  the  verdict  of  the  jury. 

Lord  ELLENBOROUGH,  C.  J.,  said :  "  The  surgeon,  who  was,  exam- 
ined specifically,  imputed  the  failure  of  the  cure  to  negligence 
and  carelessness,  and  whatever  other  expressions  he  may  have 
used  in  giving  his  evidence,  upon  which  the  learned  Judge  has 
commented,  the  question  of  skill  did  not  arise  upon  the 
evidence  in  this  case,  for  no  want  of  skill  was  imputed  to  the 
defendant ;  and,  therefore  the  opinion  of  the  learned  Judge  upon 
that  point  does  not  affect  the  merits  of  the  verdict  upon  the 
evidence  in  the  case." 

SLATER  «.  BAKER,  2  Wilson,  259. 

In  an  old  case,  reported  in  the  2d  of  Wilson's  Reports,  and 
still  referred  to  in  almost  every  modern  decision,  we  have  the 
account  of  a  Mr.  Baker,  a  surgeon  of  great  eminence,  who  was 
prosecuted  for  negligently  and  carelessly  treating  a  case  of  frac- 
ture, and  a  verdict  was  obtained  of  £500  against  him. 

This  case  is  one  of  the  oldest  on  record  of  the  kind,  it  being 
tried  in  1767. 

It  appears  that  Baker  had  been  first  surgeon  in  St.  Bartholo- 
mew's Hospital  for  twenty  years ;  that  he  read  lectures  on  sur- 
gery and  anatomy,  and  was  celebrated  for  his  knowledge  in  hi& 
profession,  and  that  he  was  also  noted  for  his  humanity. 

From  the  evidence,  the  case  seemed  to  be  this :  that  Slater, 
the  plaintiff,  having  broken  both  bones  of  his  leg,  was  in  the 
hands  of  a  surgeon  nine  weeks ;  that  in  a  month's  time  after  the 
leg  was  set,  the  surgeon  found  the  leg  was  "  healing  and  in  a 
good  way;"  the  callous  was  formed;  there  was  a  little  pro- 
truberance,  but  it  was  thought  not  more  than  usual. 

It  was  proved  also  by  the  apothecary  who  attended  Slater  the 


ENGLISH   ADJUDICATED    CASES.  113 

first  nine  weeks,  that,  at  the  end  of  that  time,  he  was  well 
enough  to  go  home ;  that  he  was  present  with  the  plaintiff  and 
defendant ;  and  at  first  the  defendants  said  the  plaintiff  had  fallen 
into  good  hands ;  and  the  second  time  they  were  all  together, 
the  defendants  expressed  themselves  well  satisfied  with  what  had 
been  done ;  but  on  the  third  time  they  came,  some  alteration  was 
suggested,  and  the  patient,  Slater,  got  into  a  passion,  and  was 
unwilling  the  defendants  should  do  any  thing  to  his  leg.  The 
plaintiff  told  them  he  was  afraid  they  would  disunite  the  callous, 
and,  as  his  leg  was  straight,  it  was  not  necessary.  Baker  and 
the  apothecary,  Stapleton,  who  was  also  sued,  on  their  third  visit 
took  up  the  leg,  not  letting  the  plaintiff  know  uhat  they  were 
about  to  do,  and  broke  up  the  callous.  "Baker  took  up  the 
plaintiff's  foot  in  both  his  hands,  and  nodded  to  Stapleton ;  and 
then  Stapleton  took  the  plaintiff's  leg  upon  his  knee,  and  the  leg 
gave  a  crack,  when  the  plaintiff  cried  out  to  them  and  said, 
"You  have  broke  what  nature  had  formed."  Baker  then  said 
to  the  plaintifij  "You  must  go  through  the  operation  of  exten- 
sion." A  heavy  instrument  of  steel,  "  that  had  teeth,"  was  put 
upon  the  leg  to  produce  the  extension. 

At  the  end  of  four  months  after  this  operation,  the  patient 
was  "  still  very  ill  and  bad  of  it." 

On  a  motion  to  set  aside  the  verdict,  because,  among  other 
reasons,  of  the  great  skill  and  reputation  of  the  defendant, 
Baker,  as  a  surgeon,  the  Lord  Chief-Justice  said:  "When  we 
consider  the  good  character  of  Baker,  we  can  not  conceive  why 
he  acted  in  the  manner  he  did ;  but  many  men,  very  skillful  in 
their  profession,  have  frequently  acted  out  of  the  common  way, 
for  the  purpose  of  trying  experiments.  Several  of  the  witnesses 
proved  that  the  callous  was  formed,  and  that  it  was  proper  to 
remove  the  plaintiff  home ;  that  he  was  free  from  pain  and  able 
to  walk  with  crutches ;  we  can  not  conceive  what  the  nature  of 
the  instrument  made  use  of  is — why  the  defendant,  Baker,  put 
it  on,  when  he  said  that  the  plaintiff  had  fallen  into  good  hands, 
and  when  the  plaintiff  only  sent  for  him  to  take  off  the  bandage ; 


114  MALPRACTICE. 

it  seems  as  if  Mr.  Baker  wanted  to  try  an  experiment  with  his 
new  instrument.  That  the  plaintiff  ought  to  receive  a  satisfac- 
tion for  the  injury,  seems  to  be  admitted ;  but  it  is  said  the 
defendant  ought  to  h  ive  been  charged  as  trespasser  vi  el  annis. 
The  court  will  not  look  with  eagle  eyes  to  see  whether  the  evi- 
dence applies  exactly  or  not  to  the  case ;  when  they  can  see  the 
plaintiff  has  obtained  a  verdict  for  such  d -images  as  he  deserves, 
they  will  establish  such  verdict,  if  it  be  possible.  For  any  thing 
that  appears  to  the  court,  this  was  the  first  experiment  with  this 
new  instrument ;  and  if  it  was,  it  was  a  rash  action— and  he  who 
acts  rashly,  acts  ignorantly — and  although  the  defendants,  in  gen- 
eral, may  be  as  skillful  in  their  respective  professions  as  any  two 
gentlemen  in  England,  yet  the  court  can  not  he'p  saying  that,  in 
this  particular  case,  they  have  acted  ignorantly  and  unskillfutty, 
contrary  to  the  known  rule  and  usage  of  surgeons." 

The  Chief-Justice,  in  this  charge,  says  rashness  is  ignorance, 
and  because  the  party  wished  to  try  an  experiment  that  he  was 
not  warranted  in  doing,  that  he  acted  unskillfully.  This  is  cer- 
tainly carrying  judicial  license  and  construction  beyond  nason, 
or  the  correct  import  of  language.  Baker  may  have  been  guilty 
of  rashness  and  recklessness,  and  probably  was,  if  the  evidence 
is  to  be  relied  upon ;  and,  if  so,  should  respond  to  the  plaintiff 
in  damages ;  and  the  greater  his  skill  and  knowledge,  the  greater 
the  b'.ame  that  attached  to  the  act.  But  it  can  not  be  said,  with 
any  propriety,  that  because  of  his  great  skill  and  high  standing, 
in  this  particular  case,  wishing  to  try  an  experiment,  that  he  acted 
ignorantly  and  unskilfully. 

The  line  is  a  very  close  one,  between  a  case  of  this  kind,  where 
the  defendant  is  guilty  of  a  rashness  and  recklessness,  that  points 
strongly  to  a  criminal  intent  or  reckless  disregard  of  life  and 
limb,  and  those  where  he  is  trying  to  cure  but  by  reason  of 
foolhardiness  and  culpable  rashness,  he  is  actually  guilty  of  a 
crime.  To  correctly  determine  where  the  criminal  offense  ends 
and  the  civil  begins,  is  often  a  point  of  great  difficulty.  This 
difficulty  arises  from  the  fact  that  a  physician  may  intend  well, 


AMERICAN    ADJUDICATED   CASES.  115 

and  yet  his  conduct  be  so  exceptional  that  he  must  be  held  liable 
criminally  when  life  is  lost  by  such  conduct,  though  he  did  not 
intend  it  at  the  time. 

AMERICAN  ADJUDICATED  CASES. 
•GALLAHER  AND  WIFE  v.  THOMPSON;  Wright's  Ohio  Supreme  Court  Reports,  466. 

Case  against  the  defendant  as  surgeon  and  physician. 

The  declaration  contained  three  counts.  1.  On  the  defendant's 
undertaking  skillfully  to  set  Mrs.  Gallaher's  leg,  which  had  been 
broken ;  breach,  that  he  so  unskillfully  set  the  leg  that  it  is  of  no 
use.  2.  On  his  promise  to  attend  Mrs.  Gallaher,  and  skilfully  set 
and  cure  the  broken  leg ;  breach,  that  the  work  was  done  so  care- 
lessly that  the  leg  is  ruined.  3.  On  a  contract  to  attend,  take 
care  of,  and  cure  the  leg  in  a  skillful  manner ;  breach,  that  he  so 
carelessly  performed,  that  the  leg  is  useless.  Plea,  not  guilty. 

Evidence  was  introduced  to  prove  that  the  defendant  was  a 
surgeon ;  that  he  was  called  by  Gallaher  to  his  wife  in  the  usual 
way,  and  attended  and  reduced  the  limb ;  but  in  the  cure  the 
ankle  joint  became  anchylosed,  and  the  foot  turned  in,  so  that  in 
walking  the  weight  of  the  body  fell  on  the  outer  side  of  the  foot, 
near  the  root  of  the  little  toe.  Much  evidence  was  also  given  of 
the  kind  of  treatment  bestowed  upon  the  limb — some  condemning 
and  some  approving — when  the  plaintiff  rested. 

W.  B.  Hubbard,  for  the  defendant,  moved  for  a  non-suit — 
1st.  Because  there  is  no  proof  of  any  engagement  by  the  hus- 
band and  wife,  as  in  the  first  count.  2d.  Because  there  is  no 
proof  of  any  contract  to  cure,  and  the  law  does  not  imply  such 
promise  from  the  retainer.1 

S.  W.  Culbertson,  contra. 

WRIGHT,  J. — The  second  and  third  counts  of  the  declaration 
are  upon  an  express  undertaking  to  cure.  There  is  no  evidence 
of  such  an  undertaking,  and  the  law  does  not  imply  one  to  that 
-extent,  from  the  mere  employment  of  a  surgeon  to  attend  a 

1  Esp.  Ev.  257 ;  2  Com.  on  Cont.  337. 


116  MALPRACTICE. 

patient.  When  the  act  to  be  done  depends  on  the  skill  of  the 
operator  alone,  the  law  will  imply  an  engagement  to  use  that 
skill,  and  to  produce  the  desired  result,  from  the  employment  of 
one  professing  it,  and  holding  himself  out  to  the  world  as  having 
it.  Where  the  result  desired,  as  the  cure  in  the  case  before  us, 
depends  both  upon  skill  in  the  use  of  means,  and  the  influence 
of  other  causes,  the  law  raises  no  such  implied  engagement ;  it 
regards  the  undertaking  to  be  only  for  the  use  of  proper  means. 
The  retainer  of  a  lawyer  obliges  him  to  the  right  conduct  of  the 
suit ;  but  not  for  the  judgment  of  the  court,  for  that  is  beyond 
frs  control.  The  retainer  of  a  physician  obliges  him  to  the  em- 
ployment of  ordinary  medical  skill  in  the  treatment  of  the 
patient ;  the  cure  is  not  with  him,  but  is  dependent  upon  the 
constitution  of  the  patient,  and  the  influence  of  causes  beyond 
the  control  of  the  physician.  The  husbandman  employed  to  cul- 
tivate a  field  is  not  supposed  to  engage  for  the  production  of  an 
average  crop.  He  may  plough  and  sow,  plant  and  water,  but  the 
increase  is  not  from  him.  A  smith  engaging  to  shoe  a  horse, 
impliedly  engages  skill  to  put  the  shoe  in  the  proper  place,  and 
to  avoid  the  quick  in  his  fastening;  because  that  is  a  mere  phys- 
ical operation— the  end  sought  for  depends  upon  nothing  but 
skill.  The  surgeon,  called  to  a  patient  with  a  broken  or  dislocated 
limb,  and  operating,  impliedly  engages  the  ordinary  skill  of  the 
profession,  in  adjusting  the  fractured  bone,  or  reducing  the  dislo- 
cation, and  the  subsequent  treatment  of  the  patient  while  he 
attends ;  these  depend  on  himself.  He  is  not  supposed  to  engage 
to  cure,  or  to  insure  a  recovery,  because  a  cure  depends  not  upon 
him.  This  point  has  been  several  times  before  the  court,  and  has 
been  always  so  decided.  As  to  the  second  and  third  counts,  there- 
fore, there  is,  at  present,  a  want  of  evidence  to  sustain  them. 

The  first  count  is  an  undertaking  with  both  the  plaintiffs.  The 
proof  is  of  an  engagement  by  the  husband.  This,  it  is  urged,  is 
proof  of  a  contract  different  from  the  one  declared  on.  Where 
the  injury  is  to  the  absolute  rights  of  the  person,  as,  batteries, 
injuries  to  health,  reputation,  liberty,  and  are  inflicted  upon  a  mar- 


AMERICAN    ADJUDICATED    CASES.  117 

Tied  woman,  and  the  suit  seeks  compensation  for  the  injury  to  her, 
or  for  her  personal  suffering,  the  husband  and  wife  must  be  joined 
in  the  suit ;  for,  in  case  of  his  death,  the  cause  of  action  survives  to 
her,  and  she  may  prosecute  the  suit  to  judgment  and  execution.1 
The  difficulty  suggested  is  not  perceived ;  but  it  is  one  open  on 
the  record,  and  may  be  raised  hereafter,  if  further  examination  is 
desired. 

It  is  further  objected,  that  the  retainer  of  the  surgeon  does 
not,  in  law,  suppose  an  undertaking  to  reduce  or  set  the  bone 
skillfully ;  but  that  such  undertaking  must  be  expressly  proved. 
The  setting  or  putting  in  place  the  bones,  is  a  mere  physical 
operation ;  and  we  think  the  retainer  and  the  visits  and  acts  of 
the  surgeon  do  lay  a  foundation,  in  law,  to  suppose  an  undertaking 
to  reduce  the  leg,  and  to  treat  the  patient  skillfully. 

There  is  evidence,  on  the  subject  of  the  treatment,  which  is  for 
the  jury.  The  question,  whether  the  skillful  setting  and  judicious 
treatment  should,  at  all  events,  effect  a  perfect  cure,  is  a  distinct 
one,  not  necessary  now  to  decide.  The  motion  is  overruled. 

Evidence  was  then  offered  on  both  sides  as  to  the  manner  of 
treating  and  dressing  the  limb,  and  of  surgeons,  as  to  what  was 
the  usual  and  customary  mode  in  the  profession,  etc.,  when  the 
evidence  was  closed. 

Oulbertson,  for  the  plaintiff,  admitted  he  could  only  recover  on 
the  first  count,  for  the  unskillful  setting  of  the  bone,  and  sub- 
mitted, without  argument,  to  the  jury. 

WRIGHT,  J. — The  question  turns  solely  on  the  credit  due  to 
the  physicians  who  have  testified  as  to  the  practice.  If  they  are 
skillful  themselves,  and  worthy  of  credit,  your  verdict  should  be 
for  the  defendant,  for  they  all  sustain  the  practice ;  if  unworthy 
of  credit  or  unskillful — and  the  other  proof  shows  the  practice 
careless  and  unskillful — you  should  give  the  plaintiff  such  dam- 
ages as  will  compensate  for  the  injury  the  wife  has  received. 

Verdict  and  judgment  for  the  defendant. 

1 1  Ch.  PL  46,  61 ;  2  Kent  Com.  151. 


CHAPTER  IX. 


McCANDLESS  ».  McWHA,  22  Pennsylvania  Reports,  2Q1. 

ERROR  to  the  Common  Pleas  of  Beaver  County. 

This  was  an  action  on  the  case  by  James  McWha  v.  Div 
Alexander  G.  McCandless,  for  an  injury  sustained  by  reason  of 
alleged  Malpractice,  in  the  setting  and  treatment  of  his  broken 
limb.  The  action  was  brought  to  September  Term,  1848. 

The  plaintiff,  by  accident,  h:fd  his  left  leg  broken,  about  the 
24th  March,  1847,  and  the  defendant,  a  surgeon  and  physician 
of  good  standing  in  his  profession,  and  otherwise,  was  called  to 
set  the  leg  and  attend  to  it. 

After  the  leg  had  healed,  this  suit  was  brought  to  recover 
damages  for  Malpractice,  on  the  alleged  ground  of  a  want  of  the 
exercise  of  sufficient  surgical  skill  and  attention  to  the  broken 
limb,  whereby,  it  was  alleged,  the  leg  had  become  shorter  than  the 
other. 

On  the  part  of  the  plaintiff  in  error,  the  defendant  in  the 
action,  the  only  testimony  stated  on  the  paper  book,  was  a  depo- 
sition of  one  Dr.  Duncan,  who,  inter  alia,  testified 'that  he  had 
been  in  practice  over  two  years;  that  in  the  capacity  of  a  stu- 
dent under  the  defendant,  he  went  with  the  defendant  to  visit  the 
plaintiff  about  a  week  after  the  fracture  had  occurred.  The  char- 
acter of  the  fracture  was  that  of  an  oblique  comminuted  fracture 
of  the  tibia  and  fibula  of  the  leg,  which  was  fractured  nearly  half 
way  from  the  ankle  to  the  knee.  The  bandages  were  opened,  sa 
that  he  discovered  that  there  were  splints  on  the  fore  and  back 

(118) 


AMERICAN    ADJUDICATED    CASES.  119 

parts  of  the  leg,  reaching  from  the  ankle  to  the  knee,  to  keep  up 
extension  and  counter-extension.  He  subsequently  stated  that, 
at  the  time  he  referred  to,  the  leg  was  considerably  swollen.  He 
said  he  did  not  feel  the  limb ;  but  so  far  as  he  could  determine 
by  the  eye,  the  limb  appeared  to  be  correctly  set.  He  further 
testified  that,  on  this  occasion,  he  heard  a  conversation  between 
the  defendant  and  the  patient  in  reference  to  the  limb,  and  heard 
the  defendant  give  instructions  to  the  plaintiff  as  to  the  dressing 
and  position  in  which  the  leg  was  to  be  kept.  The  conversation 
was,  in  substance,  a  complaint  by  the  defendant  against  the  plain- 
tiff, for  having  disturbed  the  bandages  and  dressing,  by  loosing 
them — the  plaintiff  defending  the  act  because  his  leg  was  painful 
The  defendant  instructed  the  plaintiff  not  to  disturb  the  bandages, 
to  keep  them  moist,  and  keep  the  leg  in  the  position  he  left  it, 
viz.:  horizontally — telling  him  if  he  loosed  the  bandage  the  leg 
might  be  shortened. 

He  further  stated  that  the  plaintiff's  habits  were  intemperate 
at  times  before  the  accident.  He  expressed  the  opinion  that,  from 
the  disposition  and  habits  of  the  plaintiff,  no  physician  could 
make  him  obey  instructions  as  to  the  care  of  his  leg ;  nor,  con- 
sidering his  disposition  and  habits,  treat  his  case  in  the  ordinary 
manner.  He  said  that  he  saw  the  leg  about  six  months  after- 
wards ;  the  bones  of  it  were  displaced ;  but  whether  that  was  the 
result  of  unskillful  treatment  or  improper  conduct  of  the  patient, 
he  said  he  could  not  tell. 

On  the  paper  book  furnished  on  the  part  of  the  defendant  in 
error,  the  plaintiff  in  the  action,  was  a  statement  of  the  testimony 
of  several  witnesses,  which  was,  however,  not  brought  up  with  the 
record. 

September  3d,  1850,  verdict  was  rendered  for  plaintiff  for  $850. 

A  motion  for  a  new  trial  was  made ;  and  it  was  stated  on  the 
paper  book  that,  upon  consultation,  the  court  declared  that  if  the 
plaintiff  would  release  all  but  $500,  judgment  would  be  given  for 
that  sum.  Before  release  .the  President  Judge,  BREDIN,  died; 
and,  after  his  death,  a  release  having  been  filed,  releasing  the 


120  MALPRACTICE. 

damages  above  $500,  on  5th  June,  1851,  judgment  was  entered 
on  the  verdict. 

A  writ  of  error  was  taken.  In  the  Supreme  Court  a  motion 
was  made  for  the  continuance  of  the  case,  on  the  ground  th.it  the 
bill  of  exceptions  to  the  charge,  which,  it  was  alleged  had  been 
taken  in  the  case,  had  not  been  sealed.  The  case  was  continued, 
and  in  the  opinion  delivered  in  the  case  by  Justice  LOWRIE,  a 
mode  was  suggested  for  having  a  bill  of  exceptions  made  up  and 
sealed.1  In  pursuance  of  such  suggestions,  a  petition  was  pre- 
sented to  the  Court  of  Common  Pleas,  representing  that  BREDIN, 
J.,  had  charged  in  a  certain  manner ;  that  exception  was  taken  to 
the  charge,  which  the  President  Judge  had  been  requested  to  seal 
and  to  file  the  charge ;  but  though  the  exception  to  the  charge 
had  been  noted  by  the  Judge,  yet  the  charge  was  not  filed  nor 
the  exception  sealed. 

An  affidavit  was  annexed  as  to  the  truth  of  the  facts  stated 
in  the  petition. 

Testimony  was  heard,  after  which  a  bill  of  exceptions  was 
seoled.  It  was  as  follows : 

"In  this  case  the  plaintiff,  by  his  counsel,  alleged  that  he  had 
received  serious  damage  by  defendant  not  setting  his  leg  properly ; 
or  when  set,  of  not  using  proper  splints  and  bandages  to  keep  it  in 
place,  and  in  using  no  means  to  keep  up  extension  and  counter- 
extension,  in  consequence  of  which,  and  through  neglect  of 
defendant  not  visiting  plaintiff,  and  examining  the  leg  to  see  that 
it  was  right,  the  end  of  the  bones  slipped  past  each  other,  and, 
when  knit,  the  broken  limb  is  two  inches  shorter  than  the  other, 
or  thereabouts." 

"After  the  close  of  the  testimony  on  the  trial  of  the  above 
case,  the  Hon.  JOHN  BREDIN,  President  Judge,  charged  the  jury 
substantially  as  follows :  That  the  defendant  was  bound  to  bring 
to  his  aid  the  skill  necessary  for  a  surgeon  to  set  the  leg  so  as  to 
make  it  straight  and  of  equal  length  with  the  other,  when  healed ; 

1  See  the  opinion,  in  8  Harris,  184-5. 


AMERICAN   ADJUDICATED    CASES.  121 

and  if  he  did  not,  he  was  accountable  in  damages,  just  as  a  stone- 
mason or  bricklayer  would  be  in  building  a  wall  of  poor  mate- 
rials, and  the  wall  fell  down ;  or  if  they  built  a  chimney,  and  it 
would  smoke,  by  reason  of  a  want  of  skill  in  its  construction, 
they  could  not  only  not  recover  pay  for  building,  but  would  be 
accountable  for  damages;  and  if  suits  were  more  frequently 
brought,  we  would,  perhaps,  have  fewer  practitioners  of  medicine 
and  surgery  not  possessing  the  requisite  professional  skill  and 
knowledge  than  we  now  have.  But  it  is  due  to  the  defendant  to 
state  that,  with  the  exception  of  the  matter  complained  of  in  this 
suit,  there  is  nothing  in  the  evidence  given  to  show  that  he  is  not 
respectable  in  his  profession." 

*'  To  which  charge  defendant's  counsel,  on  the  returning  of  the 
jury,  and  before  verdict  rendered,  took  exceptions,  and  requested 
the  said  judge  to  seal  a  bill  thereof,  and  file  his  charge  of  record. 
The  said  Judge  noted  the  said  exceptions,  but  omitted  to  seal  the 
bill  of  exceptions  find  file  his  charge,  and  afterward  died,  on  the 
21st  of  May,  1851,  suddenly,  and  without  having  done  as 
requested ;  and  we,  the  Associate  Judges  of  the  said  court,  (the 
present  President  Judge  having  been  counsel  for  the  plaintiff,) 
on  petition  of  the  defendant's  counsel  to  supply  the  said  charge 
and  bill  of  exceptions  thereto,  having  heard  the  same,  and  the 
answer  of  plaintiff's  counsel  thereto,  and  the  evidence  adduced  in 
support  of  said  petition  and  answer,  do  consider  and  adjudge  that 
the  foregoing  bill,  in  substance,  correctly  contains  the  charge,  as 
delivered  to  the  jury  in  the  said  action,  and  do  accordingly  testify 
and  seal  the  same  this  21st  day  of  September,  1853. 

It  was  assigned  for  error — 1.  The  court  below  erred  in  chanring 
the  jury  "that  the  defendant  was  bound  to  bring  to  his  aid  the 
skill  necessary  for  a  surgeon  to  set  the  leg  so  as  to  make  it 
straight  and  of  equal  length  with  the  other,  when  healed ;  and  if 
he  did  not,  he  was  accountable  in  damages,  just  as  a  stonemason 
or  bricklayer  would  be  in  building  a  wall  of  poor  materials,  and 
the  wall  fell  down ;  or  if  they  built  a  chimney,  and  it  would 
smoke,  by  reason  of  a  want  of  skill  in  its  construction,  they  could 


122  MALPRACTICE. 

not  only  not  recover  pay  for  building,  but  would  be  accountable 
for  damages. 

2.  In  charging  the  jury  that  "if  suits  were  more  frequently 
brought,  we  would,  perhaps,  have  fewer  practitioners  of  medicine 
and  surgery  not  possessing  the  requisite  skill  and  knowledge  than 
we  now  have." 

Cunningham  and  McCandless,  for  plaintiffs  in  error. — It  was 
said  that  the  rigid  and  unqualified  position  stated  in  the  bill  of 
exceptions  was  not  a  correct  exposition  of  the  law.  It  was,  how- 
ever, admitted  that  the  law  implies  a  contract  upon  the  part  of 
men,  to  discharge  their  duty  in  a  skillful  and  attentive  manner.1 
A  physician  or  surgeon  is  liable  for  injuries  resulting  from  the 
want  of  ordinary  dligence,  care  and  skill.2  A  physician  con- 
tracts to  employ  the  usual  skill,  but  not  to  cure?  But  the  rule 
stated  in  the  bill,  that  the  physician  was  bound  to  bring  to  his 
aid,  not  the  ordinary  and  usual  care  and  skill,  but  such  as  "to  set 
the  leg  so  as  to  make  it  straight  and  of  equal  length  with  the 
other,  when  healed,"  it  was  said  was  in  conflict  with  philosophy 
and  the  science  of  surgery.  If  such  were  the  rule,  all  that  would 
be  necessary  for  a  patient  to  do,  to  entitle  him  to  damages,  would 
be  to  show  that  the  injured  leg  was  shorter  than  the  other. 

It  was  further  contended,  that  the  jury  was  misled  by  the 
court  assimilating  the  case  of  the  surgeon  to  that  of  a  stone- 
mason or  bricklayer.  If  a  mason  or  bricklayer  should  build  a 
wall  out  of  poor  materials,  which  were  furnished  by  his  employer, 
and  the  wall  fell  in  consequence  of  the  defect  of  the  materials, 
the  architect  would  not  be  liable;  also,  the  mason  or  bricklayer 
works  with  inanimate  matter ;  but  the  surgeon  has  for  his  sub- 
ject a  thing  of  life,  active  and  changing  by  its  nature.  The 
mode  of  treatment  in  one  case  may  not  be  proper  in  another. 
Reference  was  made  to  Fergusons  System  of  Practical  Surgery,. 


1  1  Saunders,  312,  n.  2  ;  1  Lord  Raym.  213  ;  2  Wils.  359  ;  8  East.  348. 

2  9  Conn.  209,  London  v.  Humphrey. 

*  Gallaher  v.  Thompson,  Wright's  [Ohio]  Reports,  466. 


AMERICAN    ADJUDICATED   CASES.  123 

316,  for  observations  on  the  mode  of  treatment  in  cases  of  frac- 
ture of  the  leg,  and  to  the  observation  that  "  sometimes  a  frac- 
ture may  be  treated  without  the  aid  of  any  appliances ;  on  other 
occasions,  what  may  be  deemed  the  most  perfect  apparatus,  will 
not  enable  the  surgeon  to  be  so  successful  in  his  treatment  as  he 
could  wish;"  also,  to  Professor  Colics'1  Lectures  on  Surgery,  315; 
Principles  of  Surgery,  by  Professor  Miller,  of  Edinburgh,  497  ; 
Di-uilt's  Modern  Surgery,  233,  same  page,  "  There  are  some 
cases  which  it  is  as  difficult  to  account  for  as  to  remedy ;"  also, 
Gibsons  Surgery,  Vol.  2,  p.  204 ;  Aberncthy''s  Lectures  on  Sur- 
gery, 200 ;  id.  209,  "  It  is  no  use  to  strap  and  bandage  a  frac- 
ture, to  make  it  unite  by  main  force."  The  support  to  be  given 
to  a  fracture  "  should  be  gentle  and  equable,  such  as  it  would 
derive  from  the  healthy  state  of  the  parts." 

It  was  said,  from  the  surgical  principles  stated  in  the  works 
cited,  and  from  the  fact  testified  to,  of  the  fracture  being  such  as 
stated,  that  the  plaintiff's  habits  were  restless  and  intemperate, 
and  that  he  interfered  with  the  treatment  prescribed  and 
attempted ;  that  the  charge  was  erroneous,  and  led  the  jury  to  a 
misapprehension  of  the  true  principles  which  should  govern  the 
case. 

As  to  the  second  assignment,  it  was  said  that  the  part  of  the 
charge  there  referred  to  was  contrary  to  the  policy  of  the  law,  as 
tending  to  promote  litigation.  For  observations  on  the  subject, 
reference  was  made  to  the  Sept.  No.,  1853,  of  "The  New  York 
Journal  of  Medicine." 

Roberts  and  Fetterman,  for  defendant  in  error. — Complaint 
was  made  to  introducing  into  the  paper  book  the  deposition  of 
Dr.  Duncan  only. 

It  was  stated,  that  the  fracture  being  not  only  oblique  but 
comminuted,  or  broken  into  small  pieces,  according  to  the  testi- 
mony, the  bone  itself  could  not  keep  up  the  proper  extension  of 
the  leg,  and,  therefore,  something  was  necessary  to  keep  up  the 
extension  of  the  limb;  otherwise  the  muscles  of  the  leg  would, 
by  contraction,  cause  the  oblique  or  pointed  ends  of  the  bone  to 


MALPRACTICE. 

slip  past  each  other;  while,  on  the  other  hand,  if  the  leg  was 
bandaged  so  tightly  as  to  prevent  them  passing,  painful  tumef  ic- 
tion  of  the  limbs  would  necessarily  ensue,  and  require  the 
removal  of  the  bandages,  which  result,  it  was  said,  was  proved  in 
this  case.  It  was,  therefore,  necessary,  as  testified  by  surgeons, 
to  have  splints  of  such  length,  in  this  case,  as,  by  fastenings  at 
the  knee  and  foot,  would  counteract  the  contraction  of  the  mus- 
cles and  keep  up  the  extension  of  the  leg  at  the  proper  length, 
and  obviate  tight  bandaging.  Besides  the  want  of  such  treat- 
ment, it  was  said  that  the  patient  was  permitted  to  lie  on  a  sofb 
feather  bed,  without  a  box  or  other  means  to  prevent  the  sinking 
of  the  heel  or  the  weighing  down  of  the  foot  by  the  pressure  of 
the  bed  clothes. 

It  was  said,  that  in  making  the  reference  in  the  charge,  to  the 
mason  or  bricklayer,  the  Judge  spoke  only  of  the  duty  to  bring 
the  requisite  skill  of  a  surgeon  to  his  aid,  referring  to  the  me- 
-chanical  trades  by  way  of  illustrating  the  principle ;  th.it  the 
reference  was  understood  as  illustrating  the  principle  of  duty,  and 
not  as  intended  to  assimilate  the  work  of  a  surgeon  to  the  inani- 
mate wall  of  the  mason  or  bricklayer;  that,  after  the  lapse  of 
three  years,  the  recollection  of  the  language  must  be  imperfect, 
and  the  court  should  not  strain  the  language  of  the  bill  of  excep- 
tions to  produce  a  meaning  contrary  to  common  sense  and 
probability. 

It  was  said  that  it  was  not  stated  in  the  bill  of  exceptions  that 
the  defendant  was  bound  to  set  the  leg  so  as  to  make  it  straight 
and  of  equal  length  with  the  other,  but  that  he  was  bound  to 
bring  to  his  aid  the  skill  necessary  for  a  surgeon  to  set  the  leg, 
etc.;  and  it  was  this  skill  to  which  the  court  had  reference ;  that 
the  court  have  before  it  but  an  isolated  part  of  the  charge.  The 
surgeon  is  bound  to  bring  to  his  aid  the  skill  necessary  to  that 
end,  if  it  be  surgically  possible.  It  was  said  that,  according  to 
the  charge,  he  is  only  to  possess  the  skill  necessary  for  the  pur- 
pose ;  but  according  to  the  argument  on  part  of  the  plaintiff  in 
•error,  he  is  also  bound  to  accomplish  that  result. 


AMERICAN    ADJUDICATED    CASES. 

As  to  the  portion  of  the  charge  referred  to  in  the  second 
assignment,  it  was  said  that  the  remark  was  not  specially  applied 
to  this  case,  and  that  a  judge  trying  a  cause  has  a  right  to  express 
his  opinion  on  matters  of  iact,  not  as  binding  instructions,  but  as 
enforcing  on  the  jury  the  performance  of  their  duty. 

It  was  said  that  medical  authorities  have  been  cited  to  show 
that  extension  of  the  limb  is  unnecessaiy  in  setting  a  fracture. 
Whether  this  is  so  is  not  now  a  question  for  this  court.  This 
court  does  not  sit  to  correct  errors  of  surgery,  but  of  law.  If 
the  judge  correctly  laid  down  the  evidence  before  him,  he  com- 
mitted no  error. 

The  opinion  of  a  majority  of  the  court  was  delivered  by 

WOODWARD,  J. — This  was  an  action  on  the  case  by  the  defend- 
ant in  error  against  the  plaintiff  in  error,  a  respectable  physician 
and  surgeon,  for  Malpractice,  in  setting  a  broken  leg  of  the- 
plaintiff;  and  the  only  question  of  any  importance  presented  for 
our  consideration,  is  whether  the  court  erred  in  charging  "  that 
the  defendant  was  bound  to  bring  to  his  aid  the  skill  necessary 
for  a  surgeon  to  set  the  leg,  so  as  to  make  it  straight  and  of  equal 
length  with  the  other,  when  healed ;  and  if  he  did  not,  he  was 
accountable  in  damages,  just  as  a  stonemason  or  bricklayer  would 
be  in  building  a  wall  of  poor  materials,  and  the  wall  fell  down,  or 
if  they  built  a  chimney,  and  it  should  smoke,  by  reason  of  a  want 
of  skill  in  its  construction." 

It  is  impossible  to  sustain  this  proposition.  It  is  not  true  in 
the  abstract,  and,  if  it  were,  it  was  inapplicable  to  the  circum- 
stances of  the  case  under  investigation.  The  implied  contract  of 
a  physician  or  surgeon  is  not  to  cure — to  restore  a  limb  to  its 
natural  perfectness — but  to  treat  the  case  with  diligence  and  skill. 
The  fracture  may  be  so  complicated  that  no  skill  vouchsafed  to 
man  can  restore  original  straightness  and  length  ;  or  the  patient 
may,  by  wilful  disregard  of  the  surgeon's  directions,  impair  the 
effect  of  the  best-conceived  measures.  He  deals  not  with  in- 
sensate matter,  like  the  stonemason  or  bricklayer,  who  can  choose 
their  materials  and  adjust  them  according  to  mathematical  lines  -f 


126  MALPRACTICE. 

but  he  hfis  a  suffering  human  being  to  treat,  a  nervous  system  to 
tranquilize,  and  a  will  to  regulate  and  control.  The  evidence 
before  us  makes  this  strong  distinction  between  surgery  and 
masonry,  and  shows  how  the  Judge's  in  »pt  illustration  was  calcu- 
lated to  lead  away  the  jury  from  the  true  point  of  the  case. 
Dr.  Duncan  describes  the  fracture  as  an  oblique  comminuted  one 
of  the  tibia  and  fibula  of  the  leg,  about  half  way  between  the 
ankle  and  the  knee ;  and  he  says  that  on  one  occasion,  when  he 
was  present  at  a  dressing  of  the  limb,  he  heard  Dr.  McCandless 
complain  that  McWha  had  loosened  the  bandages,  and  he  told 
him  that  if  he  loosed  them  his  leg  might  be  shortened ;  but 
Me  Wh  i  justified  his  act  because  his  leg  was  painful.  Now,  upon 
such  a  state  of  facts,  the  question  was  not,  whether  the  doctor 
had  brought  to  the  case  skill  enough  to  make  the  leg  as  straight 
and  long  as  the  other,  but  whether  he  had  employed  such  reason- 
able skill  and  diligence  as  are  ordinarily  exercised  in  his  profes- 
sion. For  less  than  this  he  is  responsible  in  damages ;  but  if 
he  be  held  to  the  measure  laid  down  by  the  court  below,  the  im- 
plied contract  amounts,  on  his  part,  to  a  warranty  of  cure,  for 
which  there  is  no  authority  in  law.  In  a  fracture  like  this,  a 
shortening  of  the  limb  is  sometimes  an  inevitable  consequence. 
Dr.  Dorsey,  in  his  Elements  of  Surgery,  speaking  of  broken  legs 
below  the  knee,  says:  "The  fracture  of  both  bones  is  most  fre- 
quent; it  may  be  transverse  or  oblique,  simple  or  compound, 
comminuted  or  single.  The  fragments  are  occasionally  displaced 
in  every  direction.  In  transverse  fractures  there  is,  generally,  nc 
shortening  of  the  leg ;  but  in  those  that  are  oblique  the  leg  ifl 
generally  shortened ;"  and  from  Furgusons  System  of  Practical 
Surgery,  cited  in  the  argument,  we  learn  that  "  the  fissure  in  the 
tibia  may  be  oblique,  and  the  fragments,  two  or  more,  may  have 
a  constant  tendency  to  become  displaced ;  there  may  be  great 
irritability  of  the  muscles,  particularly  during  the  early  part  of 
the  treatment — great  restlessness  of  the  patient,  or  unwillingness 
to  submit  to  the  requisite  confinement;  in  short,  a  vast  variety 
.of  circumstances  likely  to  cause  difficulty  in  the  treatment" 


AMERICAN   ADJUDICATED   CASES.  127 

Not  to  multiply  authorities,  these  are  sufficient  to  show  that  the 
rule  prescribed  by  the  court  is  too  rigid  for  this  class  of  cases ; 
that  shortening  of  the  leg  may  result  from  the  most  careful  and 
approved  practice,  or  from  the  misconduct  of  the  patient. 
Nothing  can  be  more  clear  than  that  it  is  the  duty  of  the  patient 
to  co-operate  with  his  professional  adviser,  and  to  conform  to  the 
necessary  prescriptions ;  but  if  he  will  not,  or  under  the  pressure 
of  pain  can  not,  his  neglect  is  his  own  wrong  or  misfortune,  for 
which  he  has  no  right  to  hold  his  surgeon  responsible.  No  man 
may  take  advantage  of  his  own  wrong,  or  charge  his  misfortunes 
to  the  account  of  another. 

We  do  not  mean  to  intimate  an  opinion  that  this  case  was  per- 
fectly treated,  or  that  the  leg  could  not  have  been  restored  to  the 
length  of  its  fellow;  but  in  view  of  the  diversified  circumstances 
that  attend  cases  of  this  sort,  it  was  very  important  that  the  true 
rule  of  professional  responsibility  should  have  been  given  to  the 
jury,  with  instructions  that  they  should  inquire,  from  all  the  facts  in 
proof,  whether  the  defendant  had  come  up  to  it  or  stopped  short  of  it. 

We  have  stated  the  rule  to  be  reasonable  skill  and  diligence, 
by  which  we  mean  such  as  thoroughly-educated  surgeons  ordina- 
rily employ.  If  more  than  this  is  expected,  it  must  be  expressly 
stipulated  for ;  but  this  much  every  patient  has  a  right  to  de- 
mand, in  virtue  of  the  implied  contract  which  results  from  in- 
trusting his  case  to  a  person  holding  himself  out  to  the  world  as 
qualified  to  practice  this  important  profession.  If  a  patient 
applies  to  a  man  of  different  occupation  or  employment,  for  his 
assistance,  who  either  does  not  exert  his  skill,  or  administers  im- 
proper remedies  to  the  best  of  his  ability,  such  person  is  not 
liable  in  damages;  but  if  he  applies  to  a  SURGEON,  and  he  treats 
him  improperly,  he  is  liable  to  an  action,  even  though  he  under- 
took gratis  to  attend  the  patient,  because  his  situation  implies 
skill  in  surgery.1  The  principle  is  contained  in  the  pithy  saying 


1  Per  Heath,  J.,  in  Sliiels  v.  Blackburn,  I  Hen.  Blac.  161 ;  Sean»  v.  Prentice, 
8  East.  348. 


128  MALPRACTICE. 

of  Fitzherbert, that  "it  is  the  duty  of  every  artificer  to  exercise 
his  art  rightly  and  truly,  as  he  ought."  This  is  peculiarly  the 
duty  of  professional  practitioners,  to  whom  the  highest  interests 
of  man  are  often  necessarily  intrusted.  The  law  has  no  allow- 
ance for  quackery.  It  demands  qualification  in  the  profession 
practiced — not  extraordinary  skill,  such  as  belongs  only  to  few 
men  of  rare  genius  and  endowments,  but  that  degree  which 
ordinarily  characterizes  the  profession ;  and  in  judging  of  this 
degree  of  skill,  in  a  given  case,  regard  is  to  be  had  to  the  ad- 
vanced state  of  the  profession  at  the  time.  Discoveries  in  the 
natural  sciences,  for  the  last  half  century,  have  exerted  a  sensible 
influence  on  all  the  learned  professions,  but  especially  on  that  of 
medicine,  whose  circle  of  truths  has  been  relatively  much  en- 
larged ;  and,  besides,  there  has  been  a  positive  progress  in  that 
profession,  resulting  from  the  studies,  the  experiments  and  the 
diversified  practice  of  its  possessors.  The  patient  is  entitled  to 
the  benefit  of  these  increased  lights.  The  physician  or  surgeon 
who  assumes  to  exercise  the  healing  art,  is  bound  to  be  up  to  the 
improvements  of  the  day.  The  standard  of  ordinary  skill  is  on 
the  advance;  and  he  who  would  not  be  found  wanting,  must 
apply  himself,  with  all  diligence,  to  the  most  accredited  sources 
of  knowledge. 

If,  in  view  of  the  principles  here  stated,  Dr.  McCandless  shall 
be  found,  on  re-trial,  to  have  performed  his  whole  duty  to  his 
patient,  and  that  any  defects  in  the  limb  are  due  to  the  patient's 
fault,  or  to  the  peculiarities  of  the  fracture,  there  ought  to 
be  no  recovery  in  damages.  But  if  the  blemish  be  fairly  at- 
tributable to  professional  negligence,  the  jury  should  assess  the 
damages. 

The  only  remaining  error  assigned  is  scarcely  worthy  of  notice. 
The  action  depended  so  entirely  on  its  own  circumstances  that  the 
observation  of  the  court  as  to  the  policy  of  such  suits  was 
irrelevant,  and,  we  may  fairly  presume,  harmless.  But,  for  mis- 
direction on  the  other  point,  the  judgment  is  reversed,  and  a 
venire  de  novo  granted. 


AMERICAN   ADJUDICATED    CASES.  129 

LEWIS,  J.,  delivered  an  opinion,  as  follows : 

Without  dissenting  from  the  able  opinion  of  Mr.  Justice 
WOODWARD,  I  make  the  following  additional  remarks : 

The  case  is  peculiar,  and  relates  to  matters  of  such  general 
interest  as  to  justify  this  course.  The  court  below  charged  the 
jury  that  "the  defendant  was  bound  to  bring  to  his  aid  the  skill 
necessary  for  a  surgeon  to  set  the  leg,  so  as  to  make  it  straight, 
and  of  equal  length  with  the  other,  when  healed ;  and  if  he  did 
not,  he  was  accountable  in  damages,  just  as  a  stonemason  or 
bricklayer  would  be  in  building  a  wall  of  poor  materials,  and  the 
wall  fell  down;  or  if  they  built  a  chimney,  and  it  would  smoke, 
by  reason  of  a  want  of  skill  in  its  construction."  This  is  the 
error  complained  of,  and  it  seems  to  be  thought  that  the  court,  in 
giving  this  instruction,  held  the  surgeon  bound,  under  all  circum- 
stances, to  cure  the  fractured  leg,  so  as  to  "  make  it  straight  and 
of  equal  length  with  the  other,  when  healed."  I  do  not  so  un- 
derstand the  language  of  the  Judge.  He  only  held  the  surgeon 
bound  to  "  bring  to  his  aid  "  the  skill  necessary  for  the  purpose. 
If  the  fracture  in  question  was  one  which  might  have  been 
restored  by  the  exercise  of  ordinary  skill,  there  was  no  error  in 
requiring  its  exercise  from  one  who  held  himself  out  as  possess- 
ing it,  and  received  compensation  for  his  services  in  consequence 
of  his  represented  professional  ability.  This  brings  us  to  the 
question,  was  the  injury  one  which  might  have  been  cured  by  the 
exercise  of  ordinary  surgical  skill  ?  To  decide  this  question  we 
must  have  a  description  of  the  fracture.  The  evidence  given  has 
not  been  brought  up  by  the  bill  of  exceptions,  and  the  defendant 
in  error  objects  to  that  part  of  it  which  has  been  inserted  in  the 
paper  book,  without  being  certified  as  correct.  The  only  testi- 
mony presented  here  for  consideration,  by  the  plaintiff  in  error, 
is  the  deposition  of  Dr.  Duncan,  who  was  his  student  at  the  time 
of  the  injury,  and  visited  the  patient  in  company  with  his  pre- 
ceptor, after  the  first  visit  of  the  latter.  This  witness  describes 
the  injury  to  be  "  an  oblique  comminuted  fracture  of  the  tibia 
and  fibula,  nearly  half  way  from  the  ankle  to  the  knee,  or  there- 
9 


<  130  MALPRACTICE. 

abouts ;"  and  informs  us,  in  speaking  of  the  treatment  of  it  by 
Dr.  McCandless,  that  "there  were  splints  on  the  fore  and  back 
parts  of  the  leg,  reaching  from  the  ankle  to  the  knee,  to  keep  up 
extension  and  counter-extension."  Dr.  McCandless,  on  this 
visit,  complained  that  the  patient  had  "  disturbed  the  bandages 
and  dressing  by  loosing  them;"  and  the  patient  ''defended  the 
act  of  loosing  the  bandages,  because  the  leg  was  painful."  The 
witness  further  states  that  the  leg.  at  this  time,  was  "  considerably 
swollen." 

We  have  no  precise  account  of  the  manner  in  which  the  splints 
were  secured,  so  as  to  "  keep  up  the  extension  and  counter-exten- 
sion," for  which  the  witness  tells  us  they  were  designed.  I  am 
unable  to  comprehend  how  splints,  "  reaching  only  from  the  knee 
to  the  ankle,"  could  be  applied  to  such  a  purpose  without  mani- 
fest danger  of  injury,  by  means  of  the  attachments  which  would 
be  necessary  to  produce  the  result.  Extension,  as  used  among 
surgeons,  is  the  force  exerted  on  the  lower  fragment,  in  order  to 
bring  its  superior  extremity  lower  than  the  inferior  extremity  of 
the  superior  fractured  portion  ;  and  counter-extension  is  a  resist- 
ing force,  which  prevents  the  whole  limb,  or  even  the  body,  from 
obeying  the  force  of  extension.  The  attachment,  by  means  of  a 
circular  bandage  at  the  ankle,  for  the  purpose  of  extension,  and 
that  at  the  knee,  for  the  purpose  of  counter-extension,  would  tend 
to  impede  the  circulation,  particularly  the  venous  return,  (which 
ought  not  to  be  obstructed,)  and  would  irritate  the  parts  so  as  to 
produce  great  pain  and  probable  injury.  Professor  Boyer,  in  his 
Lectures  on  Diseases  of  the  Bones,  recommends  that  the  splints 
should  be  long  enough  to  extend  from  the  knee  to  a  short  dis- 
tance beyond  the  sole  of  the  foot,  and  that  they  should  rest  per- 
pendicularly on  their  edges,  and  a  third  splint  on  the  anterior 
portion  of  the  leg.  Professor  Miller,  in  his  Principles  of  Surgery, 
states  that  the  splints  should  "invariably  be  of  sufficient  length 
to  command  the  neighboring  joints ;  otherwise,  by  rotation,  re- 
displacement  will  certainly  take  place."  Dr.  Hutchinson  recom- 
mends splints  extending  from  the  knee  six  or  eight  inches  below 


AMERICAN   ADJUDICATED   CASES.  131 

the  sole  of  the  foot,  so  as  to  dispense  with  irritating  attachments 
at  the  ankle.  But  Professor  Dorsey,  whose  skill  and  experience 
entitles  his  opinion  to  great  respect,  in  his  work  on  surgery, 
informs  us  that  even  Hutchinson's  convenient  method  is  found  to 
produce  great  irritation,  and  to  cause  the  leg  to  swell  from  the 
pressure  of  the  circular  bandages ;  and  that  when  this  happens  in 
oblique  fractures  of  the  leg,  (such  as  the  case  in  question,)  "  the 
long  splint  of  Desault  must  be  substituted,  and  the  counter-exten- 
sion made  at  the  pelvis,  in  the  same  manner  as  in  the  case  of  a 
fractured  thigh,  except  that  the  leg  must  be  dressed  with  the 
bandage  of  strips."  In  fractures  of  the  thigh,  permanent  exten- 
sion is  usually  effected  by  means  of  a  long  splint,  acted  on  by  a 
band  attached  to  its  upper  extremity,  and  passed  over  the  peri- 
neum, by  the  tightening  of  which  the  splint  and  the  limb  are 
pushed  steadily  downward.  By  the  addition  of  a  shorter  splint, 
but  long  enough,  nevertheless,  to  extend  from  the  perineum  to 
six  or  eight  inches  beyond  the  sole  of  the  foot,  united  at  the 
lower  extremity  to  the  long  splint,  by  means  of  a  cross-piece,  the 
extending  force  could  be  applied  to  the  ankle  by  attachments  to 
the  cross-piece,  in  such  manner  as  to  avoid  irritation  or  other 
injury.  But,  according  to  the  opinion  of  eminent  surgeons,  "a 
short  splint,  extending  a  little  above  and  below  the  fractures  only, 
is  not  only  an  absurdity,  but  a  mischievous  absurdity.1  Enter- 
taining these  views  of  the  case,  I  am  bound  to  say  that  the 
plaintiff  in  error  has  failed  to  satisfy  me,  either  upon  philosophical 
principles  or  by  surgical  authority,  that  the  means  made  use  of 
for  the  purpose  of  producing  "  extension  and  counter-extension," 
were  adequate,  or  even  proper  for  the  purpose.  If  this  was  a 
case  in  which  such  extension  by  artificial  means  was  not  required, 
the  mere  want  of  adaptation  of  means  to  that  end  would  be  im- 
material. But  we  must  remember  that  the  fracture  was  oblique, 
not  transverse ;  that  it  was  comminuted ;  that  is,  the  bones  were 
broken,  not  only  at  one  point,  but  many,  and  that  both  the  tibia 

1  Miller's  Prin.  Surgery,  506. 


132  MALPRACTICE. 

and  fibula  were  thus  fractured.  Under  these  circumstances,  in 
preventing  the  shortening  of  the  limb  by  the  contraction  of  the 
muscles,  no  reliance  could  be  placed  upon  the  bones  thus  broken 
into  fragments.  The  necessity  'of  supplying  the  place  of  these 
natural  splints,  by  artificial  means,  must,  therefore,  have  been 
manifest  to  a  surgeon  of  ordinary  skill  in  his  profession.  But  in 
addition  to  the  application  of  means  not  sufficient  to  produce  the 
result  which  was  indispensable  to  a  proper  restoration  of  the  leg, 
there  is  reason  to  believe,  judging  solely  from  the  imperfect  view 
of  the  evidence  presented  by  the  plaintiff  in  error  himself,  that 
the  short  splints  were  applied  by  attachments  above  and  below 
the  fracture,  so  as  to  impede  the  circulation,  to  irritate  the  parts, 
to  cause  the  limb  to  be  "  considerably  swollen,"  and  to  produce 
so  much  pain  that  the  patient,  notwithstanding  the  strong  motive 
which  he  had  to  submit  to  any  treatment  likely  to  effect  a  per- 
fect recovery,  "  loosed  the  bandages  because  the  leg  was  painful." 
If  this  was  the  case,  whatever  may  be  thought  of  the  propriety 
of  the  original  application  of  these  means  of  extension,  their 
continuance,  and  the  neglect  to  adopt  others  less  liable  to  objec- 
tion, was  primafade  evidence  of  a  want  of  surgical  skill,  and, 
if  not  explained  to  the  satisfaction  of  the  jury,  the  defendant 
below  ought  to  answer  in  damages  for  the  injury. 

A  patient  is  bound  to  submit  to  such  treatment  as  his  surgeon 
prescribes,  provided  the  treatment  be  such  as  a  surgeon  of 
ordinary  skill  would  adopt  or  sanction.  But  if  it  be  painful, 
injurious  and  unskillful,  he  is  not  bound  to  peril  his  health,  and 
perhaps  his  life,  by  submission  to  it.  It  follows,  that  before  the 
surgeon  can  shift  the  responsibility  from  himself  to  the  patient, 
on  the  ground  that  the  latter  did  not  submit  to  the  course  recom- 
mended, it  must  be  shown  that  the  prescriptions  were  proper,  and 
adapted  to  the  end  in  view.  It  is  incumbent  on  the  surgeon  to 
satisfy  the  jury  on  this  point ;  and,  in  doing  so,  he  has  the  right 
to  call  to  his  aid  the  science  and  experience  of  his  professional 
brethren.  It  will  not  do  to  cover  his  own  want  of  skill  by  raising 
a  mist  out  of  the  refractory  disposition  of  the  patient. 


AMERICAN   ADJUDICATED    CASES.  133 

The  "intemperate  habits"  of  the  patient  are  also  relied  upon 
here.  But  this  furnishes  no  excuse  for  the  want  of  skill  in  the 
surgeon.  On  the  contrary,  it  was  a  circumstance  calculated  to 
admonish  him  that  the  case  called  for  more  skill  ant!  care  than 
cases  of  less  difficulty  demand.  We  are,  therefore,  brought  back 
to  the  main  question  in  the  cause. 

1.  Did  the  surgeon  exercise  ordinary  skill  and  care  in  his 
treatment  of  the  patient  ?     If  he  did,  he  is  not  liable.     If  he 
did  not,  he  is. 

2.  Was  the  injury  one  which,  under  all  the  circumstances, 
might  have  been  perfectly  cured  by  ordinary  surgical  skill  and 
<;are?     If  it  was,  and  the  surgeon  failed  in  his  duty  in  this 
respect,  the  damages  ought,  at  least,  to  be  commensurate  with 
the  injury.     If  the  injured  limb  was  not  susceptible  of  a  more 
perfect  restoration,  the  surgeon  would,  nevertheless,  be  liable  for 
any  unnecessary  pain  or  delay  occasioned  by  the  application  of 
unskillful  and  improper  remedies. 

Although  the  error  assigned  may  not  be  fully  sustained,  we 
have,  nevertheless,  a  right,  in  our  discretion,  to  reverse  for  an 
error  not  assigned,  if  it  is  believed  to  involve  an  important  prin- 
ciple, or  to  affect  the  justice  of  the  case.  In  the  charge  the 
court  told  the  jury,  in  substance,  that  the  surgeon  was  bound  to 
bring  to  his  aid  the  skill  necessary  to  effect  a  perfect  restoration 
of  the  leg.  The  propriety  of  this  instruction  depends  upon  the 
question  whether  the  injury  was  one  which,  under  all  the  circum- 
stances, a  surgeon  of  ordinary  skill  might  have  perfectly  cured. 
This  was  a  question  of  fact,  which  should  have  been  submitted 
to  the  jury.  Plain  as  the  question  may  seem,  it  is  not  a  matter 
of  law,  the  decision  of  which  can  be  taken  from  them  and  as- 
sumed by  the  court.  r\  here  was,  therefore,  error  in  giving  the 
peremptory  and  unqualified  direction  which  withdrew  this  part 
of  the  case  from  the  jury.  But  there  are  errors  of  omission,  as 
well  as  those  of  commission.  When  the  Judge  spoke  of  the 
obligations  of  the  surgeon  to  bring  to  his  aid  the  necessary  skill, 
he  ought  to  have  enforced  the  correlative  duties  of  the  patient, 


134  MALPRACTICE. 

to  submit  to  all  the  skillful  and  proper  requirements  of  his  pro- 
fessional attendant.  When  the  jury  were  told,  in  effect,  that  the 
defendant  was  liable  if  he  failed  to  exercise  the  skill  necessary  to' 
a  perfect  restoration  of  the  leg,  they  ought  also  to  have  been 
informed  that  if  he  exercised  ordinary  skill  and  care,  he  is  not 
responsible  for  the  disastrous  result  which  ensued.  Where  a  case 
turns  upon  a  question  of  fact,  the  jury  should  be  advised  of  the 
conclusions  of  law  which  apply  to  each  aspect  of  it.  The  object 
of  instructions  is  to  enable  the  jury  to  form  an  enlightened 
judgment  on  the  whole  case.  The  errors  of  commission  and 
omission  referred  to,  tended  to  give  the  jury  a  one-sided  view  of 
the  controversy ;  and,  when  considered  in  connection  with  the 
facts  that  a  professional  man  was  on  trial  before  a  jury  of  lay- 
men, and  that  the  court,  instead  of  guarding  him,  as  in  duty 
bound,  against  the  prejudice  likely  to  arise  in  such  cases,  actually 
indulged  in  a  strain  of  remarks  calculated  to  influence  them,  it 
is  our  duty  to  correct  all  the  errors  within  our  reach.  The 
remarks  complained  of  in  the  second  assignment  of  error,  affirm 
no  principle  of  law,  and  are,  therefore,  not  the  subject  of  review 
here,  further  than  as  they  suggest  the  propriety  of  exercising  a 
prudent  discretion  in  regard  to  matters  which  are  subject  to 
review. 

It  is  important  to  the  interests  of  society  that  the  profession 
intrusted  with  the  preservation  of  the  health  and  lives  of  the 
community,  should  be  held  to  a  strict  rule  of  accountability. 
Men  of  true  science  will  not  object  to  this.  They  court  investi- 
gation. But  the  incompetent  practitioner  and  the  designing  em- 
piric "  love  darkness  rather  than  light,"  and  the  sooner  they  are 
driven  by  judicial  scrutiny  into  other  pursuits,  for  which  they 
are  better  qualified,  and  where  they  can  do  less  mischief,  the 
better  for  the  public  welfare.  But  it  is  equally  important  that 
professional  services  should  be  fairly  treated,  and  that  true  skill 
and  worth  should  receive  the  firm  protection  of  the  law.  All 
men  have  a  right  to  the  instructions  which  make  in  their  favor. 
But  the  exigency  of  the  surgeon's  case  rendered  them  indispen- 


AMERICAN   ADJUDICATED    CASES.  135 

sable  on  the  present  occasion.  The  difficulties  which  seem  to 
stand  in  his  way  are  sufficient,  without  aggravating  them  by 
withholding  the  proper  instructions  in  his  favor. 

For  these  reasons  I  am  in  favor  of  reversing  the  judgment 
and  awarding  a  venire  de  novo. 

BLACK,  C.  J. — -We  all  concur  in  the  law  of  this  case.  The 
Judge,  in  his  charge,  fell  into  an  error  in  stating  the  amount  of 
skill  required  in  the  treatment  of  the  case.  We  reverse  for  that 
reason.  But  when  we  decide  the  legal  point  we  are  done  with  it. 
We  are  not  authority  on  the  questions  of  surgery.  Our  hands 
are  abundantly  full  of  questions  which  belong  to  our  own  pro- 
fession, without  volunteering  opinions  on  sciences  which  relate 
to  others.  I  think  it  necessary  to  say  this  in  order  to  prevent 
the  court  below,  on  second  trial,  from  supposing  that  we  intend 
to  give  them  any  instructions  on  matters  in  which  we  have  no 
jurisdiction. 

But  this  is  my  own  opinion,  for  which  no  other  member  of 
the  court  is  responsible. 

LEIGHTON  «.  SARGENT;  7  Foster's  Reports,  460. 

Trespass  on  the  case.  The  declaration  contained  two  counts, 
as  follows : 

"In  a  plea  of  trespass  on  the  case,  for  that  whereas  the  de- 
fendant was,  is,  and  for  many  years  last  past  has  been,  a  physi- 
cian and  a  surgeon,  and  during  all  the  time  aforesaid  had  exer- 
cised and  carried  on,  and  still  exercises  and  carries  on,  the  art, 
mystery  and  profession  of  physician  and  surgeon,  to  wit:  at 
Strafford,  aforesaid ;  and  while  the  said  defendant  so  used,  exer- 
cised and  carried  on  the  said  art,  mystery  and  profession  of 
physician  and  surgeon,  as  aforesaid,  to  wit :  on  the  first  day  of 
September,  A.  D.  1850,  the  said  plaintiff  employed  the  said 
defendant,  for  a  reasonable  reward  to  be  therefor  paid,  by  the 
said  plaintiff  to  the  said  defendant,  to  treat,  set,  cure  and  heal 
the  right  ankle  and  foot  of  the  said  Leighton,  which  he  then 
and  there  had  dislocated,  put  out  of  joint,  disruptured,  broken, 


136  MALPRACTICE. 

fractured,  wounded  and  bruised ;  and  although  the  said  defendant 
did  then  and  there  pretend  and  attempt  to  treat,  set,  cure  and 
heal  the  said  ankle  and  foot  of  the  said  plaintiff,  dislocated, 
put  out  of  joint,  disruptured,  broken,  fractured,  wounded  and 
bruised  as  aforesaid;  yet  the  said  defendant  then  and  there 
so  negligently,  carelessly  and  unskillfully  behaVed  and  governed 
himself,  in  and  about  the  setting,  treatment  and  care  of  the 
plaintiff's  said  ankle  and  foot,  that,  for  the  want  of  skill  and 
the  proper  application  of  splints,  and  the  application  of  proper 
medicaments  and  remedies  thereto,  and  by  and  through  the 
mere  neglect,  default  and  unskillfulness  of  the  said  defend- 
ant, in  that  behalf,  as  a  physician  and  surgeon,  the  said 
ankle  and  foot  of  the  said  plaintiff  became  greatly  inflamed, 
swollen  and  festering,  and  remained  so  inflamed,  swollen  and 
festering  for  a  long  space  of  time,  to  wit:  for  the  space  of 
eighteen  months,  and  finally  became  stiff,  set,  immovable  and 
fixed  in  an  unnatural  position,  carrying  the  toes  of  the  said  right 
foot  lower  than  the  heel  of  the  same  foot,  to  wit :  four  inches 
lower  than  the  heel  of  the  said  right  foot ;  and  the  said  ankle 
and  foot  remained,  and  ever  since  have  been,  and  are  now,  stiff, 
set,  immovable  and  fixed  in  an  unnatural  position,  as  aforesaid, 
whereby  the  said  Leighton  suffered,  and  still  suffers,  great  pain 
and  distress ;  and  so  the  said  ankle  and  foot  were  not  set,  cured 
and  healed,  but,  on  the  contrary,  in  consequence  of  the  unskill- 
fulness, negligence  and  carelessness  of  the  said  defendant  in  the 
premises,  the  plaintiff's  said  ankle  and  foot  have  become  set, 
stiff,  immovable  and  fixed  in  an  unnatural  position,  incurable 
and  almost  wholly  useless,  whereby  the  said  Leighton  has  been, 
and  still  is,  unable  to  move  and  walk  about  without  the  aid  of 
canes,  crutches  or  other  aids,  or  to  labor  or  do  any  work,  and 
has  suffered,  and  still  suffers,  great  bodily  distress  and  pain." 

The  second  count  is  in  the  same  form  to  the  words  "and  rem- 
edies thereto,"  and  adds,  "And  the  default  and  neglect  of  the 
defendant,  in  not  properly  extracting  and  removing  the  splints 
and  fractured  bones  therefrom,  and  by  and  through  the  mere 


AMERICAN    ADJUDICATED    CASES.  137 

carelessness,  negligence  and  unskillfulness  of  the  said  defendant, 
in  that  behalf,  as  a  physician  and  surgeon,  the  said  ankle  and 
foot  of  the  plaintiff  then  and  there  became  greatly  inflamed, 
virulent,  corrupt  and  festering,  and  a  mass  of  gathering,  putrid 
sores,  and  remained  so  inflamed,  virulent,  corrupt  and  festering, 
and  a  mass  of  gathering,  putrid  sores,  for  a  long  space  of  time,  to 
wit:  from  thence  to  the  day  of  the  date  hereof,  and  have  finally 
become  stiff j  weak  and  almost  useless,  and  the  said  foot  and  ankle 
remained,  ever  since  has  been,  and  is  now,  inflamed,  virulent, 
corrupt  and  festering,  and  a  mass  of  gathering,  putrid  sores, 
whereby  the  said  Leighton  suffered,  and  still  suffers,  great  pain 
and  distress;  and  so  the  said  ankle  and  foot  of  the  said  plaintiff 
were  not  cured  and  healed,  but,  on  the  contrary,  in  consequence 
of  the  carelessness,  neglect  and  unskillfulness  of  the  said  defend- 
ant in  the  premises,  the  plaintiff's  said  ankle  and  foot  have  be- 
come weak,  inflamed,  corrupt  and  festering,  and  a  mass  of  gath- 
ering, putrid  sores,  and  incurable,  whereby  the  said  plaintiff'  has 
been,  and  still  is,  lame,  decrepid  and  unable  to  walk  without 
canes,  crutches,  and  other  aids,  and  has  been,  and  still  is,  unable 
to  labor  or  do  any  work,  and  has  suffered,  and  still  suffers,  great 
bodily  pain  and  distress." 

Upon  the  trial,  upon  the  general  issue,  it  was  proved  that,  on 
the  first  of  September,  1850,  the  plaintiff,  in  consequence  of 
being  thrown  from  a  carriage,  sustained  u  severe  injury,  in  and 
about  the  ankle,  of  such  a  character  that,  under  skillful  treat- 
ment, it  might  be  expected  to  result  in  the  stiffness  and  loss  of 
the  use  of  the  ankle  joint ;  that  the  defendant  was  employed  as 
a  surgeon  to  attend  upon  the  plaintiff,  and  treat  the  case,  and  did 
so  attend  from  the  day  the  injury  was  received  until  about  the 
12th  of  January  following,  and  attempted  the  cure  of  said  injury. 

On  the  part  of  plaintiff,  it  was  contended  that  the  defendant 
neglected  to  place  and  keep  the  foot  in  a  position  at  or  nearly  at 
right-angles  with  the  leg;  but,  on  the  contrary,  suffered  it  to  be- 
come fixed  with  the  forward  part  of  the  foot  depressed  at  an  angle 
of  about  thirty  or  forty  degrees  with  the  leg,  whereby  the  limb 


138  MALPRACTICE. 

was  rendered  useless  in  walking ;  and  that  by  proper  treatment 
and  the  application  of  proper  means,  on  the  part  of  the  defend- 
ant, it  might  have  been  fixed,  if  the  ankle  joint  became  stitfj  in 
a  position  at,  or  nearly  at,  right-angles  with  the  leg,  aud  thereby 
have  been  much  more  serviceable  and  useful  to  the  plaintiff;  and 
this  was  the  principal  ground  upon  which  the  plaintiff  claimed  to 
recover  damages. 

The  defendant  objected  that,  under  the  form  of  declaration  in 
this  case,  the  action  could  not  be  maintained  upon  that  ground, 
but  the  court  held  otherwise,  and  overruled  the  objection. 

The  plaintiff  having  introduced  evidence  tending  to  show 
unskillful  and  improper  treatment  of  the  case  by  the  defendant, 
the  defendant  then  offered  to  prove  that  he  had  received  a  good 
medical  and  surgical  education ;  that  he  had  attended  a  course  of 
instruction  in  surgery  at  a  medical  school  of  high  reputation,  and 
had  otherwise  received  good,  scientific  tuition  in  surgery,  and  was 
a  regularly-educated  and  skillful  surgeon  and  physician ;  to  which 
the  plaintiff  objected,  and  the  court  rejected  the  evidence. 

The  defendant  introduced  evidence  tending  to  show  that  he 
used  means  to  bring  the  foot  up,  and  to  keep  it  in  the  proper 
position ;  and  he  introduced,  among  other  witnesses,  Mrs.  Jones, 
who  testified  that,  on  one  occasion,  when  at  the  plaintiff's  house, 
while  he  was  under  the  care  of  the  defendant,  she  saw  a  book 
placed  behind  the  foot-board  of  the  box  in  which  the  injured  limb 
was  placed,  in  such  a  manner  as  to  raise  the  foot-board  and  the 
foot  resting  against  it,  to  a  position  nearly  at  right-angles  with 
the  leg. 

The  plaintiff's  counsel,  in  the  course  of  the  cross-examination, 
attempted  to  throw  discredit  upon  this  statement  of  the  witness, 
and  also  introduced  evidence  tending  to  show  that  said  foot-board 
was  not  raised  up  in  the  manner  stated  by  the  witness,  by  means 
of  a  book,  or  any  other  substance  placed  behind  it.  The  defend- 
ant, for  the  purpose  of  corroborating  the  statement  of  said  wit- 
ness, then  proposed  to  prove,  by  the  husband  of  the  witness, 
that  she  stated  to  him,  on  her  return  home  from  the  plaintiff's 


AMERICAN    ADJUDICATED    CASES.  139 

house,  on  the  occasion  referred  to,  that  she  saw  the  book  behind 
the  foot-board,  raising  it  up,  as  testified  by  her  upon  the  stand. 
To  this  the  plaintiff  objected,  and  the  court  rejected  the  evidence. 

The  jury  returned  a  verdict  for  the  plaintiff  for  $1,500  dam- 
ages, and  the  defendant  moved  that  the  same  be  set  aside,  and  a 
new  trial  granted,  for  the  causes  aforesaid. 

For  the  the  defendant  it  was  said — 1.  The  plaintiff  alleges,  in 
the  first  count,  that  in  consequence  of  the  "  mere  neglect,  default 
and  unskillfulness  of  the  defendant,  the  ankle  and  foot  of  the 
plaintiff  became  greatly  inflamed,  swollen  and  festering  for 
eighteen  months,  and  finally  became  stiff,  set,  immovable  and 
fixed  in  an  unnatural  position;"  and  in  the  next  count  says 
nothing  of  the  remote  consequences  resulting  from  the  surgical 
treatment,  but  a.leges  "  that  through  the  mere  carelessness,  negli- 
gence and  unskillfulness  of  the  defendant,  the  ankle  and  foot  of 
the  plaintiff  became  greatly  inflamed,  virulent,  corrupt  and  fester- 
ing, and  a  mass  of  gathering,  putrid  sores,  and  remained  so  from 
thence  hitherto."  In  both  counts  the  direct  and  immediate  in- 
jury complained  of  is  the  setting,  festering,  inflammation  and 
sores,  and  the  position  of  the  foot  is  alleged  to  be  the  conse- 
quence of  this  inflammation  and  these  sores,  after  eighteen 
months'  duration. 

The  injury  complained  of  the  plaintiff  failed  to  prove.  On 
the  other  hand,  every  medical  witness  introduced,  both  for  the 
plaintiff  and  defendant,  testified  distinctly  that  the  swelling, 
festering,  inflammation  and  sores  were  a  necessary  and  unavoidable 
consequence  of  the  severe  injury  and  fracture  the  plaintiff  had 
received,  and  would  accompany  the  best  possible  surgical  treat- 
ment. 

The  plaintiff  then  abandoned  this  ground  of  action,  and 
attempted  to  prove  that  the  foot  was  not  placed  and  kept  in  a 
proper  position,  while  under  the  defendant's  care  as  surgeon. 
This  he  should  not  have  been  permitted  to  do.1 

1 1  Saund.  PI.  and  Ev.  344,  Tit,  Variance ;  Hulman  v.  Bennett,  5  Esp.  226. 


140  MALPRACTICE. 

"The  cause  and  manner  of  committing  the  injury  must  be 
substantially  proved  as  laid." 

The  case  shows  that  the  defendant  attended  on  the  plaintiff,  as 
surgeon,  four  months  and  twelve  days ;  and  the  only  allegation 
in  the  •declaration,  in  regard  to  the  position  of  the  foot  and  ankle, 
is,  that  after  eighteen  months,  in  consequence  of  the  swelling, 
etc.,  the  foot  became  fixed  in  an  unnatural  position. 

The  allegation  is  not  sustained  by  the  proof;  there  is  a  fatal 
variance,  and  the  plaintiff  must  be  non-suited.1 

"Where  a  wrongful  act  and  an  injurious  consequence  are 
alleged,  the  consequence  must  be  shown  to  result  immediately 
from  the  act :  it  is  not  sufficient  to  connect  the  act  with  a  remote 
consequence,  by  evidence  of  intermediate  causes." 

2.  The  defendant  is  charged  with  unskillfulness.     The  plain- 
tiff introduced  witnesses  to  show  that  the  best  medical  and  sur- 
gical books  directed  and  prescribed  a  certain  course  of  treatment, 
different  from  that  pursued  by  the  defendant  in  this  case ;  and 
then  urged  that  the  defendant  was  unacquainted  with  the  prac- 
tice of  surgery,  as  laid  down  in  the  books  of  his  profession,  and, 
consequently,  ignorant  and  unskillful. 

To  rebut  this  and  the  like  evidence,  the  defendant  offered  to 
prove  "  that  he  had  received  scientific  tuition  in  surgery,  and  was 
a  regularly-educated  and  skillful  surgeon  and  physician ;"  and  we 
contend  that  such  evidence  would  have  a  material  bearing  on  the 
question  of  unskillfulness.  If  the  defendant  could  show  that  he 
had  surgical  knowledge,  or  had  taken  all  the  steps  and  employed 
the  best  means  to  acquire  it,  he  would  certainly  be  less  obnoxious 
to  the  charge  of  unskillfulness,  than  if  he  knew  nothing  of  his 
profession ;  and  it  is  one  step  in  the  defense  to  the  charge  of 
unskillfulness,  to  show  that  the  defendant  was  well  qualified  to 
treat  such  cases.  At  any  rate,  it  was  a  good  and  legitimate 
answer  to  the  evidence  introduced  by  the  plaintiff 

3.  The   evidence  to   sustain   Mrs.  Jones   should  have  been 

1  2  Stark  Ev.  1584,  Art.  Variance. 


AMERICAN   ADJUDICATED    CASES.  141 

received.  The  plaintiff  attempted  to  discredit  her,  by  showing 
that  her  story  was  a  recent  fabrication,  and  the  defendant  should 
be  allowed  to  answer  such  attempts  in  the  manner  proposed. 

For  the  plaintiff — 1.  The  declaration  is  sufficient  to  maintain, 
the  suit  for  the  defendant's  neglect  to  place  and  keep  the  plain- 
tiff's foot  in  a  right  position,  as  well  as  upon  the  other  grounds 
stated.  It  formally,  distinctly  and  fully  sets  out  this  ground  of 
damage,  and  it  would  be  difficult  to  make  it  more  direct  and  dis- 
tinct in  the  particular  to  which  exception  has  been  taken. 

It  is  of  no  consequence  when  the  ankle  became  stiff  and  fixed 
in  a  wrong  position,  if,  as  it  is  alleged  in  the  declaration,  that 
fixedness  and  stiffness  in  that  wrong  position  was  the  result  of,  or 
caused  by  the  negligence,  carelessness  and  want  of  skill  in  the 
treatment  of  the  limb,  and  the  jury,  under  the  instruction  of  the 
court,  must  have  found  that  fact,  before  they  could  have  agreed 
upon  their  verdict.  But  in  the  case  at  bar,  it  appears  from  the 
record  that  the  stiffness,  etc.,  happened  before  the  bringing  of  the 
suit,  and  that  fact,  taken  in  connection  with  the  distinct  allega- 
tion in  the  declaration,  that  it  was  occasioned  by  the  defendant's 
Malpractice,  is  sufficient.1 

2.  The  testimony  of  the  husband  of  Mrs.  Jones,  the  witness, 
was  properly  rejected  by  the  court.2     There  are  some  slight 
exceptions  to  and  modifications  of  this  rule,  but  the  case  at  bar 
does  not  come  within  either. 

3.  The  evidence  offered  by  the  defendant,  that  he  had  received 
a  good  medical  education,  etc.,  was  inadmissible,  and  was  properly 
excluded.     Mertz  v.  Detweiler3  is  a  case  directly  in  point.     In 
this  case  the  defendant  called  a  physician,  and  proposed  to  prove 
by  him  that  he  knew  the  defendant — that  he  had  practiced  with 
him  as  a  surgeon,  and  knew  his  skill  and  character  as  a  surgeon. 

The  defendant  also  offered  evidence  in  regard  to  his  knowl- 


1  Ware  v.  Gay,  11  Pick.  106 ;  2  N.  H.  Rep.  100 ;  2  Pick.  214 ;  17  Johns.  92. 

2  1  Stark  Ev."l48  ;  Bull.  N.  P.  294 ;  1  Phill.  Ev.  307, 308  ;  2  Steph.  N.  P.  1787. 

3  8  S.  &  B.  376. 


142  MALPRACTICE. 

edge  of  surgery,  anatomy,  qualifications,  etc.  The  evidence  was 
rejected  by  the  court,  when  the  learned  judge  who  gave  the  opin- 
ion, said  the  testimony  of  the  defendant's  general  skill,  etc.,  was 
clearly  irrelevant ;  it  was  not  that,  but  his  treatment  of  the  par- 
ticular case,  with  which  the  jury  had  to  do.  If  the  latter  was 
notoriously  bad,  of  what  account  would  be  his  abstract  science,  or 
treatment  of  other  cases.  It  may  be  said  that  his  general  quali- 
fication might  seem  to  shed  light  on  the  propriety  of  his  practice 
in  this  particular  instance ;  but  it  is  light  which  would  be  less 
likely  to  lead  to  a  sound  conclusion  than  to  lead  astray. 

The  jury,  assisted  by  the  opinions  of  medical  witnesses,  would 
be  better  able  to  judge  of  the  treatment  from  the  treatment  itself, 
than  from  the  more  remote  consideration  of  the  defendant's  pro- 
fessional reputation,  which  was,  consequently,  not  the  best  evi- 
dence of  which  the  case  was  susceptible.1 

BELL,  J.,  in  a  long  and  able  opinion,  arrived  at  the  following 
propositions  as  the  opinion  of  the  court : 

1.  A  physician  or  surgeon,  without  a  special  contract  for  that 
purpose,  is  never  considered  as  warranting  a  cure. 

2.  His  contract,  as  implied  in  law,  is,  that — 1,  He  possesses 
that  reasonable  degree  of  learning,  skill  and  experience  which  is 
ordinarily  possessed  by  others  of  his  profession;  2,  That  he  will 
use  reasonable  and  ordinary  care  and  diligence  in  the  treatment 
of  the  case  committed  to  him ;  3,  That  he  will  use  his  best  judg- 
ment in  all  cases  of  doubt  as  to  the  best  course  of  treatment. 

3.  He  is  not  responsible  for  want  of  success,  unless  it  is  proved 
to  result  from  want  of  ordinary  skill,  or  from  want  of  ordinary 
care  and  attention. 

4.  He  is  not  presumed  to  engage  for  extraordinary  skill,  or  for 
extraordinary  diligence  and  care. 

5.  He  is  not  responsible  for  errors  of  judgment,  or  mere  mis- 
takes in  matters  of  reasonable  doubt  and  uncertainty. 

6.  Where  the  declaration  against  a  surgeon  alleged  that  the 

1 1  Satind.  H  and  Ev.  104;  3  Burr,  1918 ;  9  Bing.  333  ;  5  B.  &  A.  840. 


AMERICAN   ADJUDICATED   CASES.  143 

plaintiff  sustained  injury  from  the  want  of  skill  and  mere  neglect 
of  the  surgeon,  in  the  treatment  of  a  fracture,  it  was  held  that 
evidence  that  the  defendant  had  received  a  good  surgical  and 
medical  education,  and  was  a  regularly-educ  ited  and  skilll'ul  sur- 
geon, could  not  properly  be  shut  out  from  the  jury,  because  it 
tended  to  disprove  a  materi.il  allegation  of  the  declaration. 

On  the  last  point  the  court  says:  "The  declaration  alleges 
that  the  injury  occurred  because  the  defendant  so  negligently, 
carelessly  and  unskillfully  behaved  himself  in  and  about  the 
treatment,  etc.,  that,  for  want  of  skill  and  the  proper  application 
of  splints,  etc.,  by  and  through  the  mere  neglect,  default  and  un- 
skillfulness  of  the  defendant,  the  plaintiff  was  injured. 

It  is,  from  this  statement,  uncertain  whether  it  is  to  be  insisted 
that  the  defendant  was  ignorant,  and  knew  nothing  of  the  proper 
surgical  treatment  of  such  an  accident  as  the  plaintiff  had  suf- 
fered, or  that,  being  properly  educated  and  competently  learned 
in  his  profession,  he  had  acted  from  negligence  and  carelessness, 
contrary  to  what  must  have  been  his  better  knowledge  and  judg- 
ment, if  he  had  given  proper  attention  to  the  case.  Nothing  in 
the  declaration  confined  him  to  either  of  these  views;  and  nothing 
had  occurred  in  the  course  of  the  trial  to  restrict  the  plaintiff  to 
the  point  of  negligence.  He  was,  therefore,  at  liberty  to  take 
his  position  before  the  jury,  that  the  defendant  was  ignorant  and 
unskillful,  or  that  he  was  negligent  and  careless,  or,  if  he  was  so 
pleased,  that  he  was  both  unskillful  and  negligent.  Any  evi- 
dence, then,  calculated  to  repel  the  inference  of  ignorance  and 
unskillfulness,  to  show  that  he  was  a  man  of  suitable  education 
and  acquirements  for  the  safe  practice  of  his  profession,  must 
surely  be  competent  and  proper.  Such  evidence  must  change 
the  whole  position  of  the  case  before  the  jury,  because,  if  the 
jury  were  satisfied  he  had  proper  knowledge  and  skill,  the  only 
question  must  then  be  whether  he  had  adopted  the  course  of  his 
treatment  from  mistake,  mere  error  of  judgment,  or  from  negli- 
gence and  want  of  ordinary  care.  This,  it  is  obvious,  presents  a 
very  different  state  of  the  question  from  that  where  the  points  of 


144  MALPRACTICE. 

ignorance,  negligence  and  error  are  to  be  considered.  As  the 
evidence  in  question  seems  to  us  both  pertinent  and  material,  as 
tending  to  show  ordinary  knowledge  and  skill,  we  are  satisfied  it 
should  have  been  received ;  and  for  this  cause  the  case  must  be 
sent  back  for  a  new  trial. 

We  have  examined  the  declaration,  and  it  seems  to  us  suf- 
ficient." 


NOTE  1. — Hare0.  Reese,  7  Phil.,  Pa.,  is  a  leading  case,  both  from  the  able  charge 
}f  the  Court  and  the  character  of  the  medical  evidence.  The  plaintiff  alleges 
malpractice  in  the  treatment  of  the  plaintiff's  leg,  in  not  detecting  and  properly 
treating  a  fracture  or  dislocation,  resulting  in  shortening.  The  defendant  says 
there  was  neither  fracture  or  dislocation — that  the  shortening  resulted  from  inter- 
stitial absorption  resulting  from  a  violent  contusion.  Thayer,  J. ,  ably  reviews 
the  evidence.  He  says;  "  I  have  a  right  to  say,  and  1  conceive  it  my  duty  to  say 
in  this  case,  that  I  see  no  satisfactory  evidence  that  the  treatment  of  Dr.  Reese 
was  not  in  all  respects  skilful,  wise,  humane  and  proper.  But  I  leave  all  the 
evidence  to  you,  and  you  will  decide  for  yourselves."  He  told  the  jury  if  they 
found  the  evidence  against  the  defendant  to  return  a  verdict  of  guilty,  but  if 
not,  by  their  verdict  "put  an  end,  so  far  as  they  can,  to  the  experiments  by  unjust 
lawsuits  against  skilful,  attentive  and  humane  physicians." 

NOTES.— See  Boston  Med.  &  Surg.  Jour.,  vol.  XXXVII,  141-162;  Wagner  v. 
Calder,  Supreme  Court,  111.;  Legal  News,  vol.  VIII,  220;  Carpenter  ».  Blake, 
60  Barb.  (N.Y.)  488.  This  is  a  leading  case  and  should  be  consulted.  The  Court 
say:  "All  the  surgeons  agree  that  the  general  rule  is,  that  in  cases  of  dislocation 
the  patient  is  able  to  know  when  the  bones  are  restored  to  their  places  by  the 
noise  made  when  they  fall  into  place,  and  by  the  relief  from  pain."  This  is  not 
always  the  case.  Chamberlain  v.  Morgan,  68  Penn.  51,  168. 

NOTE  3.— See  McKeohoe  v.  Hall,  District  Court  of  Phil.,  Jan.  Term,  1870.  Ac- 
tion based  on  loss  of  an  eye..  It  was  alleged  that  leucoma  had  been  mistaken  for 
(.taphyloma.  Verdict  for  plaintiff  for  $800,  but  set  aside.  In  Doyle  v.  N.  Y.  Eye 
and  lar  Infirmary,  Supreme  Court',  N.  Y.  (Tribune,  May,  1875.)  Loss  of  both 
«yes;  damages  claimed  $10.000;  verdict  for  defendant.  In  Courtney  v.  Hender- 
son, Marine  Court,  N.  Y.,  there  was  loss  of  vision.  Judgment  for  defendant  for 


NOTE  4. — Taf  t  v.  Wilcox,  6  Kansas,  46,  is  an  important  and  well  considered  case,  as  we    as 
Branner  v.  Stromont,  19  Kansas,  51,  on  the  subject  of  this  Chapter. 


CHAPTER  X. 

ALLEGED  MALPRACTICE  IN  OPHTHALMIC  MEDICINE  AND  SURGERY. 

ONE  of  the  greatest  minds  that  ever  adorned  the  profession  of 
medicine,  spent  much  time  in  writing  a  book  to  illustrate  the 
wisdom  of  God,  as  manifested  in  the  structure  of  the  hand  ;  and 
though  the  work  was  left  half  done,  it  is  calculated  to  astonish 
the  mind  at  the  singular  structure  of  that  organ,  and  the  power 
and  wisdom  of  the  Maker. 

Great  and  wonderful  as  is  the  hand — innumerable  as  are  the 
wonderful  works  of  the  Creator  that  fill  us  with  amazement  and 
awe,  the  human  EYE  stands  out,  when  considered  in  all  its  wonder- 
ful complications  and  adaptation  to  give  pleasure  to  the  soul,  as 
above  them  all,  and  may  well  be  considered  as  "wonderful"  a 
piece  of  mechanism  as  ever  came  from  the  hand  of  God.  It  is 
the  most  perfect  optical  instrument  into  which  the  light  ever  passed. 
In  it,  all  the  difficulties  that  have  prevented  the  construction  of  a 
perfect  telescope  are  overcome.  By  the  different  refractive  powers 
of  the  transparent  medium  through  which  the  rays  of  light  pass, 
and  by  the  curvature  given  to  their  respective  surfaces,  both  the 
spherical  and  chromatic  aberrations  are  corrected  in  a  degree 
sufficient  for  all  purposes.  The  powers  by  which  it  adapts  itself 
to  variation  in  the  distance  of  the  object,  so  as  to  form  a  distinct 
image  of  it,  whether  it  be  six  inches,  six  yards  or  six  miles  off, 
are  extremely  remarkable,  and  can  not  be  regarded  as  hitherto 
completely  explained. 

The  eye  is  the  most  complex  and  complicated  of  all  the  organs 
of  the  body.  The  delicacy  of  the  structure  is  not  surpassed  by 
its  complicated  arrangement,  but  is  equally  wonderful.  The  value 
of  this  organ  can  not  be  computed.  The  surgeon,  therefore,  who 

10  045) 


140  MALPRACTICE. 

undertakes  to  treat  the  eye  with  medicine,  or  by  operation,  must 
understand  his  business  thoroughly.  A  higher  degree  of  knowl- 
edge is  necessary,  in  treating  this  most  important,  complex  and 
delicate  part,  than  may  be  required  to  treat  the  grosser  portions 
of  the  body.  The  least  error,  in  treating  the  eye,  might  extin- 
guish it  forever.  It  is  not  safe,  therefore,  for  the  patient  or  the 
surgeon,  to  undertake  the  surgical  management  of  this  organ 
without  a  specially  thorough  knowledge  of  its  anatomy — the 
effect  of  inflammation  in  the  different  structures,  it  being  differ- 
ent upon  each — and  the  effect,  to  a  nicety,  of  a  medicine  or  an 
operation.  Neither  medical  science  nor  law  will  tolerate  guessing 
in  the  treatment  of  this  organ.  Quackery  can  not  show  itself 
here,  without  dangerous  results. 

It  is  not  singular,  then,  that  suits  for  Malpractice  may  result 
from  the  treatment  of  this  organ. 

McMILLEN  «.  HEWITT,  SPRAGUE  AXD  RODMAN ;  District  Court,  Cuyahoga  Co. 

This  important  case  was  tried  before  Judge  BRINKERHOFF,  of 
the  Supreme  Court  of  Ohio,  at  the  October  Term  of  the  District 
Court  of  Cuyahoga  County,  A.  D.  1857,  having  passed  through 
several  lower  courts. 

Ingersoll,  Kelly  and  Griswold,  for  plaintiffs. 

John  McMillen,  jr.,  charges  Hewitt,  Sprague  and  Rodman, 
defendants,  in  his  petition,  that  he  employed  them,  they  being 
physicians  and  oculists,  to  attend  and  treat  his  eyes,  the  defend- 
ants holding  themselves  out  to  the  public  as  especially  learned 
and  skillful  as  oculists;  but,  instead  of  using  due  and  proper 
care,  skill  and  diligence  in  and  about  the  treatment  of  the  plain- 
tifij  they  then  and  there  conducted  themselves  in  an  ignorant, 
unskillful  and  negligent  manner  in  that  behalf,  in  this,  to-wit  : 
that  on  the  3d  day  of  August,  1853,  and  during  divers  other 
days,  then  next  following,  and  before  the  commencement  of  this 
suit,  the  said  defendants  bled  and  cupped  the  plaintiff  in  a  pro- 
fuse manner,  taking  blood  to  a  great,  immoderate  and  unneces- 
sary extent,  which  the  defendants  would  not  have  done  had  they 


MALPRACTICE   IN   OPHTHALMIC    MEDICINE   AND   SURGERY.       147 

used  due  and  proper  care,  diligence  and  skill.  The  petition 
further  charges  that  on  the  3d  day  of  August,  1853,  and  at 
divers  other  times,  the  defendants  immoderately,  unskillfully  and 
negligently,  administered  to  the  plaintiff  immoderate  and  im- 
proper doses  of  medicine,  to  wit :  cathartics  and  other  reducing 
medicines  and  applications,  which  they  would  not  have  done  had 
they  used  due  and  proper  care,  diligence  and  skill.  By  reason 
of  which  improper  treatment  the  plaintiff'  was  greatly  injured, 
whereby  the  plaintiff  sustained  damages  to  the  amount  of  five 
thousand  dollars. 

Slade  and  Andretvs,  for  defendants. 

The  defendants,  in  answering  the  petition,  admit  that  they 
treated  the  plaintiff  for  a  disease  of  the  eyes,  but  not  under  the 
circumstances  stated  in  the  petition.  They  deny,  however,  that 
in  the  treatment  of  the  plaintiff's  eyes  they  conducted  them- 
selves in  an  ignorant,  unskillful  and  negligent  manner,  either  in 
blood-letting  or  in  the  administration  of  medicines ;  but,  on  the 
contrary,  the  general  treatment  of  the  plaintiff  was  proper  and 
correct,  under  the  peculiar  symptoms  and  circumstances  of  the 
case.  They  deny  that  any  unfortunate  result,  if  any,  resulted 
from  want  of  care  or  skill  on  their  part,  but  was  owing  to  the 
peculiar  severity  of  the  disease,  there  being  strong  tendencies  to 
relapses  and  unfortunate  results ;  that  they  brought  to  the  treat- 
ment of  the  plaintiff's  case  the  ordinary  skill  of  physician  and 
oculist,  and  continued  honestly  and  faithfully  to  exercise  that 
skill  while  they  treated  the  case. 

The  testimony  in  this  case  was  quite  contradictory.  Eminent 
physicians  and  surgeons  differ  as  to  the  facts.  There  is  also  a 
slight  difference  of  opinion  as  to  the  treatment  required  in  this 
kind  of  disease. 

The  plaintiff  and  the  principal  operator  in  the  case,  Dr.  Sprague, 
appeared  and  testified.  The  plaintiff  said  his  eyes  were  first  affected 
while  tinning  the  roof  of  a  church,  between  the  15th  of  June  and 
the  1st  of  July — had  pain  in  the  back  of  the  head — continued  to 
work  till  the  2d  of  July;  did  not  work  from  the  2d  to  the  5th; 


148  MALPRACTICE. 

kept  at  work  till  the  last  of  July ;  used  poultices  and  Thomp- 
son's eye  water ;  called  on  Prof.  Delamater  the  latter  part  of  July ; 
he  gave  salts  and  pills,  and  called  second  day ;  called  again,  and 
he  sent  me  to  be  cupped ;  took  from  eight  to  twelve  ounces  of 
blood ;  next  day  he  gave  me  pills  and  salts  again ;  had  seen 
Sprague's  (defendant's)  hand-bill ;  hand-bill  said  that  Sprague  was 
an  oculist  recommended  by  Hewitt  and  others ;  father  went  for 
Sprague  at  my  request;  Sprague  came  on  Wednesday,  about 
three  or  four  o'clock ;  he  said  my  eyes  were  in  a  bad  condition  > 
said  I  had  iritis  in  second  stage  in  right  eye,  and  in  first  stage 
in  left  eye ;  he  sent  me  salve  and  eye  water ;  I  called  next  morn- 
ing at  nine  o'clock ;  saw  Sprague  and  Rodman ;  they  said  I  must 
be  bled,  and  took  about  a  pint  of  blood ;  I  called  next  day,  and 
he  brushed  my  eyelids;  I  called  every  day,  up  to  Tuesday, 
August  9th,  when  he  bled  me  again ;  next  time  he  cupped  me ; 
I  kept  on  a  week ;  he  then  called  on  me  for  a  week  or  ten  days; 
then  bled  me  again ;  I  went  to  sister's,  and  he  treated  me  there 
five  or  six  weeks ;  the  first  day  gave  me  two  large  pills — one  to 
move  my  bowels,  the  other  not ;  he  gave  me  iodine,  five  drops 
per  day,  one  drop  to  be  added  daily ;  kept  on  till  I  took  twenty- 
two  or  twenty-three  drops  a  day ;  he  then  gave  me  wahoo  and 
other  herbs;  gave  me  a  box  of  salve  to  rub  on  outside  of  lids; 
also,  a  salve  to  rub  on  in  the  morning,  that  pained  me  very  much; 
I  dropped  it ;  the  noon  salve  did  not  pain  me  much ;  the  evening 
salve  pained  me  some ;  at  my  sister's,  gave  me  another  severe 
eye  water  to  use  three  times  a  day ;  he  gave  me  another  to  apply 
after  the  first,  to  allay  its  effect.  When  Sprague  came  my  bodily 
health  was  good ;  right  eye  inflamed  a  good  deal ;  could  read 
with  both  eyes ;  right  eye,  when  used,  would  blur  and  get  watery ; 
he  gave  me  medicine  to  remove  the  granulations ;  it  was  painful; 
used  a  brush  to  put  stuff  into  eyes,  and  then  brushed  it  out 
withwatersever.il  times;  once  he  touched  ball  for  ulcer;  then 
he  could  not  work  it  out ;  lids  came  down ;  my  gums  were 
affected  some  four  days  after  Sprague  commenced ;  Sprague  said 
it  was  canker,  and  ordered  me  to  gargle  it  with  borax  and  alum. 


MALPRACTICE    IN    OPHTHALMIC    MEDICINE   AND   SURGERY.       149 

The  last  time  he  came  was  on  Sunday ;  I  told  him  I  would  like 
counsel ;  he  said  he  would  consult  on  the  general  constitution, 
but  not  on  the  eye;  I  mentioned  Delamater,  Ackley,  Everett; 
Sprague  said  he  had  never  given  me  any  mercury ;  my  body  was 
helpless  nine  weeks  after  Sprague  commenced ;  could  not  see 
any ;  Sprague  bled  me  four  times ;  two  first  at  office,  third  time 
at  my  father's,  and  fourth  time  at  my  sister's ;  Sprague  admitted 
I  was  worse ;  said  I  might  bear  to  be  bled  some  ten  or  fifteen 
times  more — might  take  a  year  to  cure  me ;  I  told  him  I  could 
not  last  that  long ;  he  put  blisters  between  my  shoulders ;  lump 
came  out,  and  Sprague  said  I  had  scrofula,  and  that  would  retard 
the  case ;  said  I  had  the  devil  in  me ;  I  began  to  improve  two  or 
three  days  after;  got  out  of  bed  in  two  months;  in  Decembel 
went  out  of  doors;  could  distinguish  objects  in  February  or 
March,  1854;  near  a  year  before  I  could  distinguish  counten- 
ances ;  about  two  years  before  I  began  to  read. 

Cross-examination. — Went  to  a  quack  once  or  twice,  who  gave 
me  a  bottle  of  stuff';  admitted  I  was  worse  after  taking  it ;  never 
said  I  was  getting  better ;  eldest  brother  had  bad  eyes ;  my  sister 
has  weak  eyes. 

John  McMillen,  sen.,  father  of  the  plaintiff,  testified  that  John's 
bodily  health  was  good  when  Sprague  began ;  saw  him  only  once 
or  twice  at  his  sister's ;  appeared  very  low;  stopped  from  work 
twenty-one  to  twenty-two  months ;  can  not  now  do  more  than  a 
half  day's  work ;  Dr.  Hewitt  is  a  good  physician. 

Proctor  Thayer,  Professor  of  Anatomy  in  the  Cleveland  Med- 
ical College,  testified  as  follows :  Been  in  practice  ten  or  eleven 
years;  John  called  two  or  three  times  on  Prof.  Delamater;  I 
made  no  examination ;  I  don't  remember  the  conversation ;  on 
Sunday  he  came  with  his  father ;  Dr.  Dalamater  sent  him  to  be 
cupped ;  on  the  following  Monday  or  Tuesday  reported  himself 
much  better ;  I  perceived  that  the  eye  had  cleared  up ;  Dr.  D. 
treated  him  a  long  time  before  I  saw  him ;  again,  in  winter, 
reduced  a  good  deal ;  eyes  opaque,  white  and  clouded  ;  corneitis 
and  iritis  not  difficult  to  distinguish ;  in  corneitis  the  cornea  is 


150  MALPRACTICE. 

opaque ;  in  iritis  altered  colors — blue  eyes  change  to  yellowish 
cast;  in  one  hundred  bad  cases  of  iritis,  ninety  will  show  marks; 
bleeding  is  more  necessary  in  iritis  than  in  cornekis,  though 
proper  in  corneitis,  guided  by  the  constitutional  symptoms; 
should  bleed  and  repeat,  if  necessary,  in  either  case;  in  iritis 
bleeding  should  be  practiced  early;  iritis  requires  thorough 
antiphlogistic  treatment — blood-letting,  mercury  and  belladonna. 

I  have  never  seen  any  indication  of  iritis  in  McMillen's  eyes ; 
do  not  believe  he  ever  had  ulcers  of  the  cornea ;  in  either  case 
treatment  should  not  be  delayed ;  would  bleed  even  a  scrofulous 
case  if  constitutional  symptoms  demanded  it;  once  bleeding 
would  not  materially  weaken  a  man ;  should  apply  crystal  sul- 
phate of  copper  to  the  eye,  if  there  were  granulations,  by  hold- 
ing up  the  eyelid,  and  then  working  it  out ;  if  the  eyes  were 
differently  diseased,  should  use  different  remedies ;  soothing  salve 
would  do  no  harm  in  either  eye ;  severe  salves  should  not  be 
applied  to  eyes  affected  with  acute  inflammation ;  think  McMillen 
had  corneitis;  would  bleed  in  corneitis  and  conjunctivitis,  if 
there  was  fever ;  apply  soothing  substances  and  give  mercurials. 

Cross-examination. — Some  surgeons  would  take  blood,  some 
give  antimony  and  salts,  some  would  give  mercury,  without  blood- 
letting or  antimony ;  buffy  appearance  of  blood  indicates  inflam- 
mation ;  eyes  in  different  stages  of  disease  more  difficult  to  treat 
than  where  the  inflammation  is  alike  in  both  cases ;  good  appli- 
cations sometimes  painful  to  the  eyes. 

Professor  John  Delamater  testified  as  follows :  Have  practiced 
medicine,  in  all  its  branches,  over  fifty  years ;  McMillen  came 
with  his  father  to  consult  me  about  an  eye ;  had  been  troubled 
several  weeks ;  eye  aggravated — not  an  ordinary  inflammation ; 
cornea  was  cloudy — vision  a  good  deal  obscured ;  could  see  iris ; 
eye  dry ;  there  was  a  red  circle  around  the  base  of  the  cornea, 
with  some  vessels  across — some  uneasiness  of  the  eye.  The 
seat  of  the  trouble  was  in  the  cornea ;  the  iris  easily  becomes 
involved  in  such  cases ;  gave  him  laudanum  water  and  epsom 
salts ;  also,  Dover's  powder  and  calomel ;  apprehended  trouble 


MALPRACTICE   IN   OPHTHALMIC   MEDICINE   AND   SURGERY.       151 

unless  arrested  immediately;  two  days  after  eyes  about  the 
same;  gave  him  a  smart  purgation,  and  sent  him  to  be  cupped, 
about  eight  ounces ;  two  or  three  days  he  came  again ;  eyes 
apparently  greatly  improved ;  cornea  cleared  out,  and  could  see 
the  iris ;  told  him  to  go  on  with  Dover's  powder  and  calomel 
and  wash ;  heard  nothing  more  of  him  for  several  weeks ;  gen- 
eral health  good ;  firm,  strong  man  ;  no  fever  then.  Six  or  eight 
weeks  after  this,  when  I  next  saw  him,  he  was  low  and  confined 
to  his  bed ;  no  appetite ;  had  fever ;  both  eyes  affected  ;  eyelids 
swollen,  cornea  red  and  cloudy  ;  eyes  perfectly  dry ;  needed  tonics 
and  mercury ;  the  disease  was  aggravated ;  as  soon  as  his  mouth 
became  sore  he  improved ;  next  tried  eye  wash ;  found  it  did  not 
work  well,  and  went  back  to  soothing  treatment;  Dr.  Sterling 
advised  cutting  off  vessels ;  worked  well  at  first,  but  finally  it  had 
to  be  abandoned ;  I  took  him  to  get  Professor  Ackley's  advice ; 
he  advised  tonics,  quinine  and  calomel ;  also,  a  blister  over  the 
eyelid,  which  at  first  seemed  to  aggravate  the  difficulty ;  brushed 
the  eye  with  powder ;  this  inflamed  the  eyelid.  When  I  first  saw 
him  he  had  corneitis ;  general  treatment  in  this  disease  the  same 
as  in  other  inflammations ;  blood-letting  in  same  class  of  cases, 
cathartic,  mild  diet,  soothing  applications  to  the  affected  part; 
sometimes  it  is  well  to  use  local  irritating  means ;  use  of  mercury 
indispensable ;  tonics  sometimes  indicated ;  could  not  read  when 
he  first  come  to  be  treated  by  me ;  the  iris  was  in  a  healthy  con- 
dition when  I  saw  him  the  last  time  before  my  second  treatment, 
and  there  was  no  necessity  for  general  blood-letting ;  blood-letting 
is  less  used  in  corneitis  than  in  iritis ;  acute  iritis  often  destroys 
iris  in  a  few  days;  it  might  be  proper  to  bleed  a  man  twice,  at  a 
short  interval,  in  iritis ;  mercury  is  important,  and  great  reliance 
placed  in  it  to  cure  iritis ;  second  bleeding  sometimes  used  a  few 
days  after  first ;  blood-letting  is  not  to  be  relied  upon  to  cure ; 
in  the  low  stage,  it  may  be  indicated,  if  something  comes  in  to 
aggravate  disease ;  if  the  pulse  was  firm  and  strong,  would  prac- 
tice general  blood-letting  at  a  late  stage  of  case  ;  such  a  case  as 
this  requires  in  its  treatment  more  than  ordimiry  skill;  where 


L52  MALPRACTICE. 

iritis  is  severe  and  continues  for  considerable  time,  it  leaves  its 
mark,  when  there  is  no  adhesion ;  tendency  in  inflammation  to 
extend  to  the  neighboring  parts ;  when  we  examined  the  eye  at 
the  clinique  the  iris  looked  clear;  appearance  of  interstitial 
ulcers — sometimes  may  go  on  to  discharge  of  pus;  I  used  to 
think  such  ulcers  contained  pus,  but  I  was  in  error ;  sometimes 
apply  sulphate  of  copper  and  nitrate  of  silver  with  brush,  and 
sometimes  in  crystal ;  to  close  eyes  without  washing  might  be 
desirable  in  some  cases ;  the  very  class  of  cases  that  eye  doctors 
get  might  require  such  treatment.  Burning  eyes  out  worked  well 
in  many  cases,  but  badly  in  others ;  this  was  the  old  practice ; 
should  be  as  likely  to  apply  sulphate  of  copper  in  one  eye  as  in  the 
other ;  scrofulous  habit  should  make  us  cautious  in  blood-letting ; 
early  iritis  more  controllable  than  corneitis ;  it  is  difficult  to  de- 
tect iritis  ;  when  cornea  is  obscured  it  is  guess  work. 

Cross-examination. — Delays  over  night  have  been  judicious; 
I  have  committed  many  errors  in  practice  that  I  regret;  errors 
in  medicine  are  common  ;— -iritis  might  not  leave  its  mark. 

Gustav  C.  E.  Weber,  Professor  of  Surgery  in  the  Cleveland 
Medical  College. — Been  in  practice  eleven  years ;  educated  in 
Germany,  Paris,  Amsterdam  and  Vienna ;  there  is  no  difficulty 
in  distinguishing  between  corneitis  and  iritis,  when  they  exist 
alone;  when  corneitis  is  present,  diagnosis  of  iritis  more  difficult; 
after  the  diagnosis  is  determined,  there  should  be  no  delay  in  the 
treatment ;  there  is  some  variance  as  to  the  propriety  of  blood- 
letting among  surgeons ;  authors  in  different  countries  of  Europe 
differ  on  this  point ;  the  English  bleed  more  than  the  French  or 
Germans ;  I  would  bleed  in  corneitis :  nitrate  of  silver  or  sul- 
phate of  copper  might  be  applied  in  conjunctivitis,  when  it  would 
be  improper  in  iritis ;  same  irritants  to  both  eyes,  under  different 
degrees  of  inflammation,  injudicious. 

Cross-examination. — Six  years  in  active  duties ;  where  the 
cornea  is  obscured,  other  symptoms  should  guide ;  pain,  deep  and 
lancinating,  symptom  of  corneitis  and  iritis ;  iritis  attended  with 
most  pain ;  persons  looking  on  bright  substances  are  liable  to 


MALPRACTICE   IN   OPHTHALMIC    MEDICINE    AND   SURGERY.       153 

inflammations  of  the  different  structures  of  the  eyes;  the  iris 
might  be  atlected ;  also,  cornea. 

Dr.  Elisha  Sterling. — Iritis  and  corneitis,  combined  with  con- 
junctivitis, is  as  distinguishable  as  small-pox  and  gout;  in  a 
plethoric  person,  bleeding  and  calomel  might  have  been  neces- 
sary, depend  on  circumstances ;  not  my  practice  to  bleed  at  all 
in  diseases  of  the  eye ;  in  first  stage  of  congestion  it  nrgm  be 
difficult  to  detect  traces  of  iritis ;  the  second  stage  would  proba- 
bly leave  its  mark ;  can  see  no  trace  of  iritis  in  McMillen's  eyes ; 
belladonna  don't  discover  it ;  corneitis  not  an  obstinate  disease 
of  the  eye :  three  years  in  practice. 

Dr.  J.  S.  Dewberry. — It  is  not  difficult  for  one  who  is  skilled 
in  his  profession  to  distinguish  between  iritis  and  conjunctivitis, 
combined  with  corneitis.  It  would  not  be  proper  to  go  from 
mild  to  severe  treatment,  if  the  patient  was  improving  under  the 
former;  if  the  patient  was  getting  weaker  and  weaker,  it  would 
be  injudicious  to  repeat  blood-letting;  severe  disease  of  the  iris 
generally  leaves  its  mark,  that  distinguishes  it  from  other  dis- 
eases of  the  eye ;  I  have  examined  the  eyes  of  the  plaintiff  some 
six  months  since ;  there  was  no  evidence  of  a  disease  of  the  iris ; 
there  had  evidently  been  corneitis ;  the  cornea  was  still  somewhat 
opaque ;  if  the  patient  is  of  a  scrofulous  diathesis,  we  should 
deplete  with  caution;  granulations  upon  the  eyelids  are  not  man- 
ifested at  the  commencement  of  the  disease ;  it  is  the  result  of 
inflammation. 

Cross-examination. — Have  practiced  medicine  seven  years; 
iritis  may  exist  combined  with  corneitis  and  conjunctivitis  ;  in  a 
severe  case  of  iritis,  I  should  first  try  local  depletion ;  if  that  did 
not  arrest  it,  resort  would  be  had  to  general  blood-letting. 

Dr.  John  H.  Dix,  of  Boston,  Mass.,  deposition.  —  Am  an 
oculist;  have  been  in  practice  since  1836;  treat  between  eleven 
and  twelve  hundred  cases  annually ;  in  general  the  diagnosis  of 
iritis  is  not  difficult ;  in  severe  cases  like  the  one  supposed,  iritis 
would  generally  leave  its  mark ;  there  should  be  no  delay  in  the 
treatment  of  a  severe  case  of  iritis ;  corneitis  does  not  generally 


154  MALPRACTICE. 

require  general  blood-letting ;  local  blood-letting  will,  in  general, 
be  sufficient  in  corneitis,  but  sometimes  general  blood-letting  may 
be  practiced ;  I  have  never  had  a  case  of  corneitis  that  required 
three  or  four  blood-lettings  in  six  or  seven  weeks ;  in  general  I 
should  require  considerable  deviation  from  the  healthy  pulse  be- 
fore bleeding,  but  I  can  conceive  a  case  where  the  symptoms, 
other  than  the  pulse,  might  require  general  bleeding;  in  a 
scrofulous  habit  we  should  bleed  less;  in  syphilitic  iritis  I  would 
at  once  resort  to  mercurials,  in  some  form  or  other ;  but  in  scrof- 
ulous iritis  I  should  not  probably  resort  to  mercurials  till  I  had 
tested  the  efficacy  of  other  treatment ;  when  both  eyes  are  differ- 
ently diseased,  the  same  stimulants  are  not  usually  applicable  to 
both ;  I  never  use  the  sulphate  of  copper  or  nitrate  of  silver  in 
crystal  in  my  practice,  though  they  might  be  proper  under  some 
circumstances,  as,  where  there  are  granulations ;  the  formation  of 
granulations  is  a  slow  process,  except  in  purulent  ophthalmia. 

Cross-examination. — I  could  not  say,  from  the  hypothetical 
case,  that  it  would  be  bad  practice  to  bleed  the  patient  and  give 
calomel  and  ja'ap ;  a  buliy  coat  to  the  blood  would  indicate 
blood-letting;  it  might  be  necessary  to  bleed  three  times  in  a 
bad  case  of  iritis;  iritis  does  not  always  leave  its  mark;  in  a 
severe  case  the  patient  often  has  to  be  depleted  to  a  considerable 
extent  before  the  use  of  tonics. 

For  the  defense,  Dr.  Sprague,  one  of  the  defendants,  testified 
that  when  he  first  visited  the  plaintiff'  he  was  not  reading — was 
in  great  pain — in  a  room  not  favorable  for  examination ;  made  a 
partial  examination;  helped  him  out  of  the  wagon  when  he  came 
to  the  office;  there  was  an  ulcer  in  the  upper  and  outer  part  of 
cornea ;  had  suppurated  and  broken  ;  in  the  left  eye  there  was  a 
radiated  zone — hard  and  bad  granulations — getting  worse;  had 
ceased  treatment  for  a  week ;  supposed  iris  was  affected ;  pupil 
contracted  in  left  eye ;  disease  commenced  in  outer  coat ;  gave 
him  blue  pill — also,  calomel ;  requested  me  to  come  to  Jones' ; 
never  saw  him  on  bed  until  the  6th  of  September. 

Cross-examination. — Left  eye,  contraction  of  pupil  like  small 


MALPRACTICE   IN    OPHTHALMIC   MEDICINE   AND    SURGERY.       155 

shot ;  light  will  contract  pupil ;  when  I  darkened  the  eye  no  alter- 
ation took  place;  in  other  cases  than  iritis,  rotating  zone  differs 
from  what  it  is  in  iritis ;  light  pink  in  iritis — darker  color  in  cor- 
neitis ;  Ibund  change  of  colors  in  iris,  and  pupil  stationary ; 
orange  color  in  the  lower  part  of  iris ;  pupil  drawn  down  a  little 
toward  nose,  cylindrical  in  shape;  bleeding  good  in  syphilitic 
iritis ;  biniodide  of  mercury  good ;  came  to  his  bed  more  than 
two  weeks  after  last  bleeding ;  was  brought  to  his  bed  by  his 
fever ;  the  last  time  I  bled  him  was  in  the  sitting  room ;  last 
bleeding  reduced  the  pain  in  the  head  and  the  redness  in  the 
eye ;  some  five  days  after,  symptoms  returned ;  applied  salve  to 
acute  case ;  John  wanted  me  to  come  again,  and  not  leave  him. 
Re-examined. — I  am  forty-two  years  old  ;  practicing  fourteen 
years ;  studied  at  Castleton,  Vt;  practice  mixed  ;  spent  one  year 
in  studying  diseases  of  the  eye,  with  Dr.  Wallace,  of  N.  Y.;  about 
1st  of  August  McMillen  came  and  said  his  son  had  a  very  severe 
inflamed  eye ;  went  and  saw  the  son  ;  right  eye  passed  into  the 
second  stage  of  disease ;  an  ulcer  on  cornea ;  above  and  around 
cornea  opaque ;  pupil  could  not  be  seen ;  sclerotic  coat  very  red ; 
conjunctiva  swollen ;  cornea  vascular  blood-vessels  shooting  from 
sclerotic  entirely  across ;  beneath  net-work  of  blood-vessels  white- 
ness was  seen ;  pupil  obscured  ;  left  eye  cornea  tolerably  trans- 
parent, though  blood-vessels  over  it ;  .pupil  could  be  seen ;  vessels 
formed  a  zone;  conjunctiva  very  much  swollen,  passing  into 
same  condition  as  right  eye,  discharged  considerably ;  granula- 
tions on  upper  lid  of  both  eyes;  could  not  see  much;  face 
flushed  ;  pulse  full,  strong  and  febrile — 80  to  90  ;  fleshy  ;  iris  in 
right  eye  could  not  be  seen ;  iris  in  the  left  eye  most  affected  or 
threatened ;  pain  in  the  head  severe ;  said  he  had  been  under 
treatment  for  a  long  time,  and  was  getting  worse  and  worse ; 
wanted  me  to  treat  it;  came  to  my  office  frequently  in  open 
wagon ;  I  was  at  Jones'  sometimes  every  day — sometimes  every 
other  day ;  about  September  3d  I  was  sent  for,  as  he  was  worse ; 
when  I  saw  him  I  was  surprised,  and  told  him  so ;  said  you  have 
taken  cold ;  he  had  fever  and  headache ;  full,  strong  pulse,  near 


156  MALPRACTICE. 

90  ;  eyes  very  much  reddened ;  his  voice  indicated  catarrh — so 
his  nose ;  he  said  he  had  taken  cold,  and  did  not  know  but  it  was 
imprudent  doing  what  he  had  done;  then  bled  him  the  third 
time,  and,  perhaps,  cupped  after  the  bleeding;  symptoms  miti- 
gated ;  did  not  improve  much  for  four  or  five  days ;  at  this  time 
Dr.  Delarnater  took  charge  of  the  case,  and  I  was  dismissed ; 
John  was  never  in  bed  until  last  relapse. 

Cross-examined. — In  right  eye  I  judged  the  iris  was  inflamed, 
from  other  symptoms  than  view  of  iris ;  cornea  in  right  eye 
suppurated. 

Re-examined. — Ointment  internal,  sulphate  of  zinc  and  fresh 
butter ;  change  from  active  to  chronic  inflammation  gradual. 

Dr.  Rodman,  one  of  the  defendants,  agreed  with  Dr.  Spiague, 
.and  sustained  what  he  said. 

Prof.  Ackley  testified  that  he  was  forty-five  years  of  age ;  had 
practiced  medicine  and  surgery  over  twenty  years,  and  had  con- 
siderable experience  in  the  treatment  of  eyes,  especially  during 
the  last  twelve  or  fourteen  years.  Upon  the  symptoms  of  the 
disease,  and  the  history  of  the  case,  as  given  by  Dr.  Sprague,  he 
should  say  it  was  a  very  severe  case — a  case  where,  in  the  ma- 
jority of  cases,  vision  would  be  lost  under  the  best  possible  treat- 
ment. I  mean  the  right  eye ;  and  it  is  often  the  case  when  one 
eye  is  lost  from  severe  disease,  the  other  follows  the  same  course. 
Antiphlogistic  treatment  would  be  proper ;  but  no  one  but  the 
physician  in  attendance  could  determine  to  what  extent  it  should 
be  carried.  I  consider  mercury  as  absolutely  necessary.  I  would 
consider  the  treatment  correct,  viz.:  low  diet,  blood-letting,  c-ilo- 
mel  and  jalap,  Dover's  powder  and  a  wash.  It  would  be  propei 
to  apply  sulphate  of  copper,  in  crystal  or  powder,  to  the  granula- 
tions after  blood-letting.  If  the  inflammatory  symptoms  contin- 
ued, I  should  bleed  again,  and  continue  mercurial  course :  but  I 
wish  to  be  understood  as  stating  that  no  one  but  the  attending 
physician  can  be  the  judge  of  the  necessity  of  such  treatment. 
It  would  be  good  treatment  to  cup  the  temples.  There  are  cases 
-where  it  would  be  proper  to  bleed  three  times.  An  ointment  of 


MALPRACTICE   IN    OPHTHALMIC   MEDICINE   AND   SURGERY.       157 

sulphate  of  zinc  and  fresh  butter  would  be  proper,  in  a  vast 
number  of  cases.  A  wash  of  acetate  of  lead,  or  sulphate  of 
zinc,  or  sulphate  of  copper,  would  be  proper.  All  such  prepara- 
tions as  blue  pill,  hydraryrum  cum  creta,  or  bicloride  of  mercury 
would  be  proper.  The  radiating  zone  indicated  acute  iritis, 
almost  always,  and  particularly  so  when  it  is  secondary  upon  dis- 
eases of  the  exterior  structures.  There  are  some  cases  where  it 
occurs,  primary  and  early  antiphilogistic  treatment  cures  the 
difficulty,  and  no  traces  are  left.  It  is  necessary  so  to  deplete. 
I  apprehend  that  every  case  would  be  subject  to  a  variation  of 
treatment  in  this  respect ;  but  almost  every  case  would  require 
depletion.  In  these  cases  the  patient  is  liable  to  relapse,  from 
causes  over  which  the  physician  has  no  control. 

I  first  saw  the  plaintiff's  eyes  in  February,  1854 — examined 
them  carefully,  and  had  a  full  description  of  the  case  and  treat- 
ment from  Dr.  Delamater,  as  far  as  he  was  connected  with  the 
case.  I  had  no  doubt  then  that  the  patient  had  suffered  first 
from  severe  conjunctivitis,  and  then  sclerotitis  and  corneitis,  and, 
lastly,  iritis.  The  affliction  of  the  iris  I  then  considered  as  sec- 
ondary to  the  other  inflammations.  The  patient  at  that  time 
exhibited  a  constitution  that  would  render  such  diseases  of  the 
eye  of  difficult  treatment.  I  have  treated  numerous  cases  of 
iritis  complicated  with  conjunctivitis.  It  is  not  difficult  to  detect 
disease  in  the  external  structures  of  the  eye ;  but  it  is  often  diffi- 
cult to  say  to  what  extent,  if  at  all,  the  interior  tissues  are  involved. 
As  a  general  rule,  when  the  cornea  is  so  seriously  involved  as  to 
be  opaque,  the  iris  and  other  internal  structures  are  involved,  to 
a  greater  or  less  extent.  When  the  other  tissues  of  the  eye  have 
been  affected,  it  is  sometimes  difficult  to  detect  iritis ;  but  where 
it  is  a  primary  difficulty  it  is  not.  I  never  prescribe  for  iritis 
when  it  is  something  else,  but  sometimes  prescribe  for  something 
else  when  it  is  iritis.  Contraction  of  the  pupil  is  often  the  result 
of  iritis.  The  reputation  of  Drs.  Wallace  and  Delafield,  of  N.  Y.r 
is  good.  I  am  not  personally  acquainted  with  them ;  but  I  know 
their  general  reputation. 


158  MALPRACTICE. 

Cross-examination. — There  are  numerous  cases  where  a  well- 
read  physician  or  oculist  may  determine  whether  the  treatment 
has  been  improper,  though  he  has  not  seen  it.  As  a  matter  of 
course,  if  the  attending  physician  is  to  be  the  proper  judge  of 
the  course  of  treatment,  he  must  be  a  well-read  man.  I  am  not 
intimately  acquainted  with  Dr.  Sprague's  qualifications  as  a  prac- 
titioner, but  have  heard  him  spoken  of  as  a  well-educated  physi- 
cian and  surgeon.  I  consider  Lawrence  as  good  authority  on  the 
eye  as  we  have ;  still  he  has  changed  his  views  within  the  last 
ten  years.  His  medical  treatment  is  not  equal  to  McKenzie, 
while  there  is  no  better  operator.  Such  case,  of  a  seventy  as 
to  require  three  or  four  blood-lettings  within  six  or  eight  weeks, 
would,  in  all  probability,  leave  the  cornea  imperfect.  I  would  not 
practice  general  blood-letting  as  freely  in  conjunctivitis  and  cor- 
neitis  as  in  iritis ;  in  either  case  the  object  would  be  to  hold  the 
disease  in  check  to  get  time.  I  do  not  often  repeat  general 
blood-letting  in  corneitis  or  conjunctivitis.  In  many  cases  gen- 
eral blood-letting  is  unnecessary. 

Henry  W.  Williams,  of  Boston,  deposition. — I  think  the 
treatment  of  the  hypothecated  case  was  proper.  The  application 
of  crystal  sulphate  of  copper,  or  nitrate  of  silver,  to  granulations, 
would  have  been  excellent  practice.  I  am  not  as  much  in  the 
habit  of  bleeding  as  many  practitioners.  It  might  be  proper  in 
a  very  robust  patient,  to  bleed  three  times.  I  am  less  inclined  to 
both  blood-letting  and  mercury  than  most  authorities  on  the  eye 
It  would  be  good  practice  to  use  the  sulphate.  The  radiating 
zone  is  usually  considered  to  indicate  iritis ;  but  it  may  be  caused 
by  disease  of  the  cornea.  Iritis  generally  leaves  its  mark,  if  not 
treated  at  the  outset,  but  not  invariably.  The  use  of  tonics  be- 
fore the  system  has  been  depleted,  would  be  injurious.  There  is 
extreme  liability  to  a  relapse  in  severe  diseases  of  the  eye.  My 
age  is  thirty-three ;  have  been  seven  years  in  practice  on  dis- 
eases of  the  eye.  I  have  been  physician  to  several  institutions 
in  Boston  for  diseases  of  the  eye.  I  have  had  a  hundred  cases  of 
eye  disease  under  treatment  at  one  time.  Was  educated  as 


MALPRACTICE    IN    OPHTHALMIC    MEDICINE    AND   SURGERY.       159 

oculist  at  Paris,  London  and  Vienna,  and  took  my  degree  at 
Harvard  University. 

Cross-examination. — I  place  McKenzie  and  Tyrrell  above 
Lawrence  in  the  treatment  of  the  eye.  The  same  medicine  may 
be  applied  to  eyes  differently  inflamed  in  such  a  way  as  to  be 
proper.  Corneitis  does  not  admit  of  as  much  blood-letting  as 
iritis,  except  in  the  acute  stage.  I  would  prefer  leeches,  but 
moderate  blood-letting  would  be  better  than  cupping.  Local 
cupping  is  liable  to  cause  secondary  congestion  near  the  eye,  in 
the  reparative  process  necessary  for  the  healing  incisions;  there- 
fore, no  local  relief  might  be  obtained,  though  the  general  health 
would  be  less  reduced.  I  have  never  employed  blood-letting  in 
corneitis  more  than  once ;  it  is  seldom  accompanied  with  a  vig- 
orous constitution.  The  diagnosis  of  corneitis,  as  distinguished 
from  iritis,  is  not  difficult.  It  might  be  good  practice  to  watch 
the  case  one  day  before  instituting  powerful  treatment,  in  the  case 
supposed.  An  abscess  discharging  purulent  matter  on  the  cornea 
would  be  apt  to  leave  its  mark.  I  was  once  sued  for  Malpractice 
as  an  oculist,  but  the  suit  was  withdrawn  without  any  solicitation 
on  my  part,  before  coming  to  trial. 

William  Clay  Wallace,  of  the  city  of  New  York,  deposi- 
tion.— My  age  is  forty-nine.  I  have  devoted  nearly  thirty 
years  particularly  to  the  diseases  of  the  eye ;  twenty  of  which 
has  been  in  the  city  of  New  York.  On  the  hypothecated  case 
you  put,  I  would  have  treated  the  case  as  indicated.  In  the 
case  supposed,  blood-letting  and  mercury,  to  the  extent  supposed, 
would  have  been  proper.  The  bichloride  of  mercury  is  an  excel- 
lent alterative,  and  is  highly  recommended  in  similar  cases. 
Iritis  is  sometimes  very  obstinate,  and  very  liable  to  relapse. 
Vision  is  lost  from  this  complaint  under  the  most  accomplished 
practitioners.  As  a  general  rule,  iritis  is  not  difficult  of  treat- 
ment. In  the  case  represented,  several  structures  were  inflamed 
at  the  same  time;  both  eyes  red  and  much  swollen;  eyelids 
granulated.  Both  parties  may  be  correct  in  their  definition  of 
the  case ;  it  might  be  called  conjunctivitis  and  corneitis  on  the 


160  MALPRACTICE. 

one  hand,  and  iritis  on  the  other.  Judging  from  the  symptoms, 
I  believe  the  patient  had  a  severe  attack  of  Egyptian  ophthalmia, 
and  that  he  was  saved  from  blindness  in  both  eyes  by  the  ener- 
getic treatment  of  the  first  practitioner.  To  adopt  a  tonic  stim- 
ulating course  at  the  commencement  of  an  acute  inflammatory 
disease,  is  not  only  contrary  to  the  doctrines  of  medicine,  but 
also  contrary  to  common  sense  and  to  common  experience. 

Cross-examination. — If  the  cornea  is  clear,  it  is  not  difficult  to 
distinguish  between  iritis  and  corneitis.  A  plethoric  mechanic, 
although  of  a  strumous  habit,  might  require  active  depletion. 
Belladonna  will  not  cause  the  pupil  to  expand  when  inflamed. 

Edward  Delafield,  of  New  York  City,  deposition. — I  am 
sixty  years  of  age,  and  am  a  general  practitioner  of  medicine. 
I  have  been  engaged  for  thirty-five  years  in  the  practice  of  dis- 
eases of  the  eyes  and  other  practice,  in  the  city  of  New  York. 
My  practice  has  been  very  extensive  in  the  treatment  of  eyes, 
having  seen  two  thousand  cases  a  year  in  the  Infirmary,  besides 
what  have  occurred  in  my  private  practice.  As  described  in  the 
interrogatory,  I  would  say  the  case  was  conjunctivitis — the  in- 
flammation of  the  cornea  or  corneitis  being  an  effect  of  the 
primary  disease ;  and  would  say  the  treatment  laid  down  in  the 
interrogatory  was  proper  for  either  iritis  or  for  conjunctivitis,  but 
not  in  all  its  parts  necessary  in  every  case  of  iritis.  I  would 
consider  it  good  practice  as  stated  in  the  interrogatory.  In  the 
case  supposed  I  would  not  bleed  a  second  time;  though  in  some 
cases  it  might  be  proper,  in  others  it  would  be  improper  and  in- 
jurious. Cupping  would  be  very  proper  under  the  circum- 
stances. As  a  general  thing  I  would  not  bleed  a  second  time ; 
but  this  is  a  point  upon  which  experts  might  differ.  Iritis  is  not 
a  difficult  disease  to  treat ;  but  the  case  described  in  the  inter- 
rogatory is  one  of  much  more  difficult  treatment  than  iritis. 
The  disease  described  in  the  interrogatory  is  remarkably  liable  to 
relapse :  very  frequently  the  best  medical  skill  fails  to  save  the 
sight.  My  own  practice  would  be  to  take  blood  from  the  arm 


MALPRACTICE   IN    OPHTHALMIC    MEDICINE   AND   SURGERY.       161 

once  at  the  commencement ;  a  second  might  be  required ;  rarely 
would  a  third  blood-letting  be  necessary. 

Cross-examination. — Unless  a  physician  had  devoted  more 
time  than  physicians  generally  do,  to  diseases  of  the  eye,  he 
might  readily  confound  iritis  with  conjunctivitis ;  but  one  who 
has  devoted  much  time  to  the  diseases  of  the  eye,  would  have 
no  difficulty  in  distinguishing  between  the  cases.  There  is 
nothing  wrong  in  any  part  of  that  treatment,  as  you  state  it,  as 
employed  early  in  the  disease ;  but  I  would  probably  have  em- 
ployed some  other  remedies.  If  the  patient  became  very  much 
reduced,  I  would  not  bleed  from  the  arm,  but  would  cup.  I 
would  expect  more  from  a  decided  impression  made  by  the  use 
of  mercury  in  the  first  instance,  than  from  its  continued  use 
afterward.  In  a  strumous  habit  I  would  be  more  cautious  about 
blood-letting.  In  a  majority  of  cases  the  treatment  indicated  in 
the  case  would  be  proper.  In  pure  iritis  I  would  depend  on 
mercury.  I  have  often  treated  conjunctivitis  with  mercury;  but 
in  such  cases  as  the  one  described,  I  would  rely  on  a  decided 
impression  made  with  mercury  at  the  outset. 

The  evidence  in  this  case  was  voluminous,  occupying  several 
days  of  the  court.  Only  a  part  has  been  given  -,  but  enough  to 
give  an  idea  of  the  case  and  circumstances  attending  it,  and  what 
may  be  considered  medical  authority  in  the  case.  The  case  is 
here  fairly  presented ;  although  the  evidence  is  not  all  given, 
there  is  nothing  omitted  that  alters  the  aspect  of  it. 

BRINKERHOFF,  J.,  charged  the  jury,  "  That  the  law  did  not 
require  of  the  defendants  eminent  or  extraordinary  skill ;  that 
this  kind  of  skill  is  possessed  by  the  few.  The  extraordinary 
skill  of  Delamater  or  KirtJand  are  exceptions.  It  would  not  do 
to  take  them  as  the  standard  for  the  profession  of  medicine 
generally.  If  they  were  to  be  taken  as  the  order  of  professional 
knowledge  required,  it  would  at  once  drive  a  large  and  respect- 
able class  of  worthy  practitioners  from  the  field.  Though  they  do 
not  possess  the  great  learning  and  ability  of  those  named,  it  is 

11 


1G2  MALPRACTICE. 

perhaps  equally  true  they  never  will ;  many,  perhaps  most,  never 
can  attain  to  such  knowledge.  An  absolute  necessity  requires  that 
the  wants  of  community  must  be  supplied  with  the  best  medical 
knowledge  its  means  and  location  will  command.  To  require  the 
highest  degree  of  skill  would  deprive  all  places,  except  large  cities, 
of  medical  men.  The  medical  profession  is  as  upright,  as  self- 
sacrificing  and  useful  as  any  other — none  can  do  without  their 
assistance  during  some  period  of  life — and  they  are  eminently 
entitled  to  protection  at  the  hands  of  the  court.  The  surgeon  is 
not  a  warrantor  or  a  guarantor  of  a  cure.  It  would  be  mon- 
strous to  require  it  at  his  hands ;  it  would  be  alike  monstrous  to 
hold  a  physician  liable  for  mistakes,  if  he  brings  to  bear  ordinary 
skill  and  care.  In  this  case,  if  the  surgeons  have  not  given  to 
the  patient  the  ordinary  care  and  skill  of  the  profession  gener- 
ally, then  the  plaintiff  ought  to  recover.  Should  you  find  that 
the  plaintiff  is  entitled  to  damages  at  all,  you  are  to  limit  them 
strictly  to  the  effect  of  the  Malpractice.  It  would  be  outrageous 
to  charge  the  loss  of  time,  the  suffering,  the  loss  of  eye-sight  to 
tho  defendants,  if  it  was  the  natural  result  of  disease,  even  if 
they  were  guilty  of  some  little  delinquency,  not  in  itself  pro- 
ducing the  sad  effect.  Nothing  must  be  charged  to  them  but 
what  is  to  be  traced  directly  to  their  want  of  ordinary  care  and 
skill,  and  dependent  upon  it." 

After  deliberating  two  days,  the  jury  could  not  agree,  and 
were  discharged. 

Another  long,  tedious  trial  was  had  of  the  case  subsequently, 
upon  which  essentially  the  same  evidence  was  given,  and  the 
jury  found  for  the  defendants. 

The  expenses  attending  the  case  were,  of  course,  heavy. 


SEE  APPENDIX,  page  588,  for  full  Notes  on  this  Chapter. 


C II AFTER  XL 

MALPRACTICE    IN   DRESSING  INCISED   WOUNDS— DEPOSITIONS    OP 
PROFESSORS  HAMILTON  AND  FLINT,  OF  BUFFALO. 

NICHOLAS  M.  HOLT  *  ED.  BRECK;   Cuyahoga,  0.,  Common  Pleas,  1858. 

IN  this  case  the  defendant  was  charged  in  the  usual  form  with 
Malpractice  in  dressing  the  foot  of  the  plaintiff — it  having  been 
cut  with  an  axe  on  the  outside  of  the  foot,  just  above  the  little 
toe.  The  wound  was  an  incised  one,  of  an  inch  and  a-half  or 
two  inches  long,  just  raising  a  little  flap  of  flesh,  passing  through 
the  metatarsal  bone  of  the  little  toe. 

Afterward  the  whole  foot  became  diseased,  and  amputation 
deemed  necessary.  It  was  claimed  that  this  necessity  depended 
upon  bad  treatment  of  the  original  wound  by  the  axe.  Dam- 
ages laid  at  $5000. 

In  preparing  the  case  several  depositions  were  taken.  Among 
them  were  those  of  the  distinguished  surgeon,  Frank  Hastings 
Hamilton,  of  Buffalo,  and  the  distinguished  physician,  Austin 
Flint. 

Adams  and  Lawrence,  for  the  plaintiff! 

J.  J.  Elwell,  for  the  defendant. 

The  depositions  were  taken  at  the  instance  of  the  defendant. 

Prof.  Austin  Flint,  of  Buffalo,  deposed  as  follows : 

Age  forty-five  years ;  special  duties  as  Professor  are  to  teach 
Pathology  and  Clinical  Medicine  in  the  Medical  College  and 
Hospital  of  Buffalo ;  have  not  practiced  surgery  of  late ;  formerly 
practiced  surgery,  but  of  late  prefer  the  practice  of  medicine; 
decline  all  cases  of  surgery,  and  devote  my  attention  especially 

(163) 


164  MALPRACTICE. 

to  pathology ;  I  have  been  in  the  practice  of  medicine  about 
twenty-four  years. 

Hypothetical  question  by  defendant's  counsel  : 

We  will  suppose  a  case  of  incised  wound  from  an  axe  on  the 
outside  of  the  foot,  commencing  near  the  lower  part  of  the 
metatarsal  bone,  extending  up  and  through  the  bone,  say,  three 
inches,  or  thereabouts,  cutting  through  the  edge  of  the  foot,  not 
injuring  the  fourth  metatarsal  bone,  presenting  a  loose  flap  of 
skin  and  flesh  on  the  outside  of  the  foot — the  patient  a  man 
aged  fifty-seven  years — would  it,  in  your  opinion,  be  good  or  bad 
medical  and  surgical  practice  to  dress  the  wound  with  superficial 
stitches,  above  and  below,  the  application  of  strips  of  adhesive 
plaster  over  the  part,  and  the  whole  foot  surrounded  with  a  roller 
of  cotton  cloth  sufficiently  tight  to  keep  the  loose  flesh  in  its 
place,  and  carried  up  around  the  ankle  ? 

Ans. — I  would  regard  it  as  good  practice. 

Ques. — Would  it  be  good  or  bad  treatment,  in  your  opinion, 
if  the  attending  physician,  in  the  case  supposed,  should,  on  the 
first  or  second  day  after  the  first  dressing,  remove  the  circular 
bandage,  if  there  was  swelling  and  pain  in  the  foot,  soak  and  wash 
it,  and  then  reapply  the  bandage,  after  dressing  with  simple  cerate  ? 

Am. — I  should  regard  it  as  good  practice. 

Ques. — State  whether  or  not  the  treatment  indicated  in  the 
case  supposed,  would  tend,  in  any  way,  to  develop  disease  of  the 
bones  of  the  foot? 

Ans. — I  think  not. 

Ques. — In  your  opinion,  as  a  pathologist,  would  it  be  possible 
or  impossible  to  bandage  the  foot,  in  the  hypothetical  case,  so 
tight  as  to  develop  disease  of  the  bones  of  the  foot,  or  disease 
of  the  periosteum,  within  twelve  days,  without  seriously  affecting 
the  soft  parts  ? 

Ans. — It  would  not  be  possible. 

Ques. — State  what  the  effect  of  too  tight  bandaging  would  be 
upon  the  flap  supposed,  and  upon  the  soft  parts  below  the  band- 
age, if  continued  twenty-four  or  forty-eight  hours. 


MALPRACTICE   IN   DRESSLNG   INCISED    WOUNDS.  165 

Ans. — If  sufficiently  tight  to  produce  injury,  the  tendency 
would  be  a  loss  of  vitality  and  sloughing  of  the  parts  mentioned. 

Ques. — Would  it  be  possible,  or  otherwise,  in  your  opinion  as  a 
pathologist,  to  bandage  any  healthy  part  so  tight  as  to  injure  the 
periosteum  or  the  bone,  without  the  effect  being  first  to  destroy 
or  abrade  the  soft  parts  ? 

Aiis. — I  should  think  it  would  not  be  possible. 

Ques. — What  would  be  the  effect  of  tying  a  half-inch  rope 
around  a  healthy  foot  of  a  male  adult  fifty-seven  years  of  age, 
as  tight  as  a  strong  man  could  tie  it,  to  remain  there  forty-eight 
hours,  and  what  parts  would  become  relatively  affected  ? 

Ans. — The  effect  would  be  loss  of  vitality  and  sloughing,  and 
the  soft  parts  would  be  first  affected.  The  periosteum  and  the 
bone  would  be  secondarilv  affected,  if  at  all ;  and  I  am  not  sure 

•/  ' 

that  they  would  be  affected  at  all  in  that  space  of  time. 

Ques. — Suppose,  in  addition,  and  connected  with  the  hypothet- 
ical case  submitted  to  you,  there  should  appear,  in  ten  or  fifteen 
days,  an  abscess  over  the  cuneiform  bones,  what  would  be  your 
opinion,  as  a  pathologist,  as  to  the  cause  of  such  abscess,  sup- 
posing it  involved  the  destruction  of  the  periosteum  ? 

Ans. — I  should  regard  it  as  involving  some  cause  irrespective 
of  the  wound,  or  dressing. 

Ques. — What  is  the  comparative  liability  of  the  periosteum  to 
take  on  disease,  in  connection  with  the  other  tissues  of  the  foot? 

Ann. — It  is  much  less  liable. 

Ques. — Upon  what  cause,  or  causes,  in  your  opinion,  do 
abscesses  and  diseases  of  the  bone  generally  depend? 

Ans. — They  generally  depend  upon  constitutional  causes. 

Ques. — Is  abscess  likely  to  follow  typhoid  fever  ? 

Ans. — I  have  observed  abscess  to  follow  typhoid  fever.  I  have 
not  observed  disease  of  the  bone  to  follow  that  fever,  and  I  am 
not  prepared  to  say  how  it  is  upon  the  authority  of  others. 

Ques. — In  case  of  an  abscess  of  several  days'  standing  over 
the  cuneiform-tarsal  bones,  involving  the  complete  destruction  of 
the  periosteum  of  the  bone  or  bones  immediately  below  the 


1G6  MALPRACTICE. 

abscess,  where,  in  your  opinion,  did  the  disease  commence,  in  the 
soft  parts  or  in  the  bone  ? 

Am. — I  should  regard  it  as  having  commenced  in  the  bone  or 
periosteum. 

Ques. — If  amputation  of  the  limb  in  case  supposed  became 
necessary,  in  fifteen  or  eighteen  months  after  the  injury  was 
received,  and  the  patient  in  the  meantime  was  in  the  hands  and 
ander  treatment  from  various  physicians,  state  whether  the  ultimate 
cause  of  the  amputation  could  be  attributed,  with  any  certainty, 
to  that  of  the  first  physician  in  attendance  in  the  case  supposed  ? 

Am. — It  would  be  difficult  to  do  it. 

Ques. — Of  what  medical  works  are  you  the  author? 

Ans. — I  have  written  a  work  on  Continued  Fevers ;  one  on 
Diseases  of  the  Respiratory  System,  on  Dysentery,  on  Chronic 
Pleurisy,  and  I  have  edited  the  Buffalo  Medical  Journal,  in  this 
city,  for  eight  or  nine  years. 

Ques. — Would  you  or  not  expect  that  the  dressings  to  the 
foot,  in  either  of  the  cases  supposed,  in  the  foregoing  interroga- 
tories, if  not  so  tight  as  to  injure  the  skin  or  to  destroy  the  loose 
flap,  could  possibly  lay  the  foundation  for  amputation  ? 

Am. — I  should  think  it  not  possible. 

Cross-examination  by  Plaintiff's  Counsel. 

Ques. — Might  not  amputation  ultimately  become  necessary,  by 
reason  of  too  tightly  bandaging  the  foot,  and  improperly  dressing 
it  on  the  first  occasion,  in  the  cases  suggested  in  the  second  and 
third  direct  interrogatories  ? 

Ans. — It  might. 

The  cross-examination,  which  was  lengthy,  did  not,  in  the 
least,  shake  the  effect  of  the  direct. 

The  following  is  the  deposition. of  Prof.  F.  Hastings  Hamilton: 

Age  forty-four  years ;  Professor  of  Surgery  in  the  Buffalo 
Medical  College ;  am  one  of  the  surgeons  to  the  Hospital  of  the 
Sisters  of  Charity  in  the  city  of  Buffalo ;  have  been  engaged  in 
the  profession  nearly  twenty-five  years. 


MALPRACTICE   IN   DRESSING    INCISED   WOUNDS.  167 

In  answer  to  the  hypothetical  ca.se  given  to  Prof.  Flint,  Prof 
H.  said :  I  see  nothing  in  this  implying  bad  practice.  1  think 
the  treatment  on  the  second  day  was  good  treatment.  I  think 
the  treatment  indicated  would  have  no  influence  to  develop 
disease  of  the  bone,  and  that  it  would  be  as  well  calculated  as 
any  treatment,  to  prevent  it. 

Qncs. — State  whether  or  not,  in  your  opinion,  it  would  be  pos- 
sible to  bandage  the  foot,  in  the  case  supposed,  so  tight  as  to  de- 
velop disease  of  the  bone  or  of  the  periosteum,  within  twelve 
days,  without  seriously  affecting  the  soft  parts. 

Am. — I  should  think  not. 

Ques. — What  is  your  opinion  as  to  the  effect  of  tight  bandaging 
of  the  foot  upon  the  flap  separated  by  the  axe,  and  upon  the  foot 
below  the  bandage,  if  continued  twenty-four  hours  ? 

Am. — It  might  produce  sloughing  of  the  flap,  with  swelling 
and  discoloration  of  the  portion  of  the  foot  below  the  bandage. 

Ques. — Would  it  be  possible,  or  otherwise,  to  bandage  any 
healthy  foot  so  tight  as  to  injure  the  periosteum  or  the  bone, 
without  first  destroying  the  soft  parts  or  abrading  the  skin  ? 

Am. — I  should  think  it  not  possible  to  bandage  the  foot  so 
tight  as  to  injure  the  periosteum  and  bones  without  first  injuring 
the  soft  parts. 

In  answer  to  the  question  as  to  tying  a  rope  around  the  foot, 
Dr.  H.  said : 

There  would  probably  be  sloughing  and  ulceration  of  the  soft 
parts,  immediately  under  the  rope,  with  swelling,  discoloration,  and 
perhaps  gangrene  of  the  portion  of  the  foot  below,  subsequently 
to  these  occurrences — possibly  subsequent  disease  of  the  bones. 
It  is  not  probable  that  the  bone  would' become  diseased  unless  the 
rope  was  re-tightened.  The  periosteum  is  not  so  often  diseased 
as  the  soft  parts. 

Ques. — Upon  what  cause  or  causes,  in  your  opinion,  do  ab- 
scesses and  diseases  of  the  bone  generally  depend  ? 

Am. — Constitutional  causes.  These  forms  of  disease  some- 
times follow  typhoid  fever. 


168  MALPRACTICE. 

Ques. — In  case  of  an  abscess  of  several  days'  standing,  over 
the  cuneiform  bones,  involving  the  complete  destruction  of  the 
periosteum  of  these  bones,  immediately  below  the  abscess,  where, 
in  your  opinion,  did  the  disease  commence? 

Ans. — In  the  bones.  I  should  think  the  treatment,  as  detailed 
in  the  hypothetical  questions,  could  not  lay  the  ground  for  ampu- 
tation. It  is  not  an  easy  thing  to  excite  disease  in  the  bones  of 
a  healthy  foot. 

Ques. — Would  it  be  possible  or  not,  in  the  case  supposed,  to 
dress  the  foot  so  tight  as  to  injure  the  bones,  without  completely 
destroying  the  flap. 

Ans. — I  can  not  say  that  it  is  impossible ;  but  it  seems  to  me 
scarcely  possible,  at  least  if  we  suppose  the  bones  first  took  on 
disease,  and  that  the  abscess  was  the  result  of  the  disease  of  the 
bone.  It  is  quite  possible  that  an  abscess,  commencing  in  the 
soft  parts,  should  ultimately  extend  to  the  bone,  provided  the  state 
of  the  general  system  is  not  healthy. 

Ques. — If  the  dressings  in  the  case  supposed  were  not  so  tight 
as  to  abrade  or  injure  the  skin  of  the  foot,  or  materi.illy  hinder 
the  healing  process  of  the  incised  wound,  could  or  not,  such 
dressing  lay  the  foundation  for  amputation  ? 

Ans. — I  think  they  could  not. 

Cross-examination. 

Ques. — Might  not  amputation  ultimately  become  necessary,  by 
reason  of  too  tightly  bandaging  and  dressing  the  foot  for  the  first 
time,  in  the  case  suggested  by  the  defendant  in  the  second  inter- 
rogatory? 

Ans. — The  question  does  not  suppose  sufficient  conditions  for 
me  to  answer. 

An  extended  cross-examination  did  not  tend  to  weaken  the 
defendant's  case. 

The  result  was  that  these  two  depositions  so  damaged  the  case 
of  alleged  Malpractice,  that  it  went  out  of  court  without  coming 
to  trial. 


CHAPTER   XII. 

DRUGGISTS— THEIR   RESPONSIBILITIES LEADING  ADJUDICATED 

CASES. 

IT  is  a  well-established  principle  of  law,  that  a  vender  of  pro- 
visions for  domestic  use  is  bound  to  knoiu  that  they  are  sound 
and  wholesome,  at  his  peril.1  It  is  an  equally  elementary  princi- 
ple, that  in  contracts  for  the  sale  of  provisions,  the  party,  by  im- 
plication, who  sells  them,  undertakes  to  guarantee  that  they  are 
sound  and  wholesome.2 

Blackstone  also  says :  "  Injuries  affecting  a  man's  health,  are 
where,  by  any  unwholesome  practices  of  another,  a  man  sustains 
any  apparent  damage,  in  his  vigor  or  constitution,  as,  by  selling 
him  bad  provisions  or  wine ;  by  the  exercise  of  noisome  trade,  or 
by  the  neglect  or  unskillful  management  of  a  physician,  surgeon 
or  apothecary — these  are  wrongs  or  injuries  unaccompanied  by 
force,  for  which  there  is  a  remedy  in  damages,  by  a  special  action 
•on  the  case.3 

These  principles  apply  equally  to  druggists,  physicians  and 
chemists,  who  compound  medicines,  as  to  those  who  sell  bread, 
meat,  wines,  etc.  More  care  should^  be  exercised  by  those  who 
mix  poisons  for  internal  use,  than  is  needed  by  those  who  sell 
fruit,  food  and  the  like.  Bad  wines,  provisions,  fruit  and  meat,  can 
usually  be  at  once  detected  by  the  senses ;  while  the  character  of 


1  Van  Bracklin  v.  Fonda,  12  Johnson's  Rep.  468. 

2  3  Black.  Com.  165. 

3  3  Chitt.  Black.  91. 


170  MALPRACTICE. 

medical  substances  and  compounds  are  only  discovered  by  the 
careful  analysis  of  an  experienced  chemist. 

A  druggist,  or  one  who  prepares  medicines,  is  held  to  a  strict 
accountability  in  law,  for  any  mistake  he  may  make  in  compound- 
ing medicines.1  He  must  be  exact  in  preparing  those  powerful 
medicines,  of  which  a  very  small  dose  may  produce  f  ital  conse- 
quences. If  an  apprentice  of  an  apothecary  is  guilty  of  negli- 
gence, he  is  guilty  of  manslaughter,  if  fatal  results  follow.2  In 
the  Tessymond  case,  a  mother  sent  to  a  chemist  for  a  penny- 
worth of  paregoric;  the  chemist's  apprentice  delivered  a  phial 
with  a  paregoric  label  on  it,  but  with  laudanum  in  it;  six  or 
seven  drops  were  given  to  the  child,  supposing  it  to  be  paregoric, 
and  killed  it.  The  apprentice  made  the  mistake  from  the  cir- 
cumstance that  the  laudanum  bottle  and  the  one  containing 
paregoric  stood  side  by  side.  BALEY,  J.,  told  the  jury,  "If  you 
think  there  was  negligence  on  the  part  of  the  prisoner,  you  will 
find  him  guilty ;  if  not,  you  must  acquit  him."  If  any  damages 
had  resulted  to  the  child,  and  not  death,  then  the  chemist  would 
have  been  liable  for  the  act  of  his  agent,  the  apprentice. 

So,  where  a  chemist  makes  a  mistake,  when  he  is  labeling  med- 
icines for  the  general  market,  if  the  medicine,  in  the  course  of 
trade,  passes  through  many  hands,  and  is  finally  bought  and  used 
by  one  who  is  injured  thereby,  the  original  maker  is  liable  to  the 
person  so  injured,  and  not  the  druggist,  who,  relying  upon  the 
correctness  of  the  label,  innocently  sells  the  article  for  what 
it  is  not. 

An  important  question  with  druggists  has  been  how  they  shall 
best  regulate  the  sale  of  poisonous  drugs,  without  becoming  liable, 
and  prevent  any  mistakes  or  accidents  that  may  prove  fatal. 

Some  excellent  suggestions  on  this  subject  were  made  by  the 
American  Pharmaceutical  Association,  at  their  annual  meeting, 
held  in  Philadelphia,  in  September,  1857,  in  an  appeal  brought 


1  Fleet  &  Semple  v.  Hollenkcmp,  13  B.  Monroe's  Reps.  p.  219. 

2  Tessymond's  case,  1  Lcwin's  Crown  Cases,  169. 


RESPONSIBILITIES    OF   DRUGGISTS.  171 

forward  by  the  Committee  on  Poisons,  and  adopted  by  the  Asso- 
ciation. 

They  say :"  From  the  diversity  of  opinion  among  pharma- 
ceutists in  relation  to  the  value  and  force  of  direct  legislative 
action,  in  restricting  the  sale  of  poisonous  substances,  the  Asso- 
ciation does  not  deem  it  desirable  to  attempt  at  present  the  pas- 
sage of  laws  in  the  different  States  bearing  upon  the  subject; 
but,  in  place,  offers  to  the  pharmaceutist  such  suggestions  as  are 
deemed  expedient  under  existing  circumstances. 

The  Association  suggests  that  the  pharmaceutist  should 
adopt  rules  in  dispensing  of  poisons,  by  which  he  may  remove 
from  himself  the  responsibility  of  selling  poisons  for  disreputable 
purposes,  and  protect  the  public  both  from  mistakes  occurring  in 
his  own  premises  and  from  the  use  of  poisons  for  unlawful  and 
criminal  purposes. 

That  in  selling  any  substance  which  would  prove  fatal  in  a 
dose  of  sixty  grains  by  weight,  or  a  fluid  drachm  by  measure, 
you  consider  it  poisonous,  and  mark  the  word  *  poison,'  in  a  di?~ 
tinct  and  unmistakeable  manner,  upon  the  label  or  package ;  that 
you  consider  the  poisonous  alkaloids  and  the  like  powerful  sub- 
stances deadly  poisons,  and  so  mark  each  package  or  label ;  that 
you  make  it  an  invariable  rule  to  have  every  package  of  medicine 
dispensed  at  your  counter  plainly  marked,  whether  it  be  an  inno- 
cent or  a  poisonous  one ;  thit  you,  for  the  purpose  of  distinguish- 
ing, by  the  aid  of  color  as  well  as  of  words,  have  the  labels  of 
the  furniture  of  your  establishment,  which  contains  poisonous  sub- 
stances, of  a  peculiar  color,  and  distinct  from  that  of  the  rest 
of  your  labels ;  that  you  keep  such  furniture  by  itself,  in  order 
that  it  may  not  cause  remark  by  customers;  or  that,  in  place  of 
this  suggestion,  you  adopt  the  practice  of  placing  upon  each 
bottle,  or  drawer,  or  package  of  such  poisonous  substances,  some 
symbol,  such  as  a  bright  red  piece  of  paper,  a  triangle  or  Greek 
cross,  or  of  other  suitable  form,  thus  giving  the  eye  an  additional 
means  of  cautioning  you  when  handling  such  substances.  That 
you  print  your  dispensing  labels  for  poisons  upon  a  paper  of  an 


172  MALPRACTICE. 

entirely  distinct  color  from  that  upon  which  your  ordinary  ones 
are  printed ;  that  in  dispensing  prescriptions  containing  poisonous 
substances,  while  you  can  not  mark  such  '  poisonous,'  unless 
so  directed  by  the  writer  of  the  recipe,  yet  by  marking  a  symbol 
in  red  ink  upon  the  label  of  the  medicine,  you  may  avoid  any 
mistake  in  its  re-preparation,  in  putting  up  a  poisonous  substance 
for  an  innocent  one;  that,  as  an  additional  precaution,  you  adopt 
the  practice  of  placing  bands  of  rubber  around  the  necks  and 
over  the  stopples  of  bottles  containing  poisonous  medicines  in 
frequent  use,  or  in  some  other  manner  de'ay  slightly  the  opening 
of  the  bott'e,  so  as  to  form  an  additional  security  and  caution 
against  mistake ;  that  in  preparing  prescriptions  you  adopt  this 
course:  first  carefully  and  underst:indingly  read  the  recipe — 
then  prepare  it — then  copy  the  receipt  into  a  book  provided  foi 
the  purpose,  with  the  date,  name  of  prescriber  and  name  of  pa- 
tient and  directions ;  finally,  place  the  number  corresponding  to 
the  one  on  record  upon  the  original  recipe  and  the  label,  before 
delivering  the  medicine.  In  this  way,  any  possible  error  in  first 
reading  the  recipe  may  be  discovered  in  recording  it ;  and,  sec- 
ondly, you  have  a  guide  in  the  patient's  name,  by  which  you  may 
avert  evil  consequences,  should  an  error  be  discovered  after  the 
medicine  has  left  the  store;  that  you  provide  yourself  with  a 
book,  in  which  to  record  every  sale  of  poison,  stating  in  each 
entry  the  date  of  sale,  to  whom  sold,  for  what  purpose  desired, 
the  quantity  sold,  and  price  received.  This  can  be  used  as  evi- 
dence in  case  of  any  blame  being  attached  to  you— in  case  of 
accident  resulting  from  articles  purchased  of  you ;  that  you  con- 
sider yourself  responsible  to  the  community  in  which  you  live, 
.  where  there  may  be  no  legislative  control  to  the  sale  of  poisons, 
and  that  you  be  particular,  when  furnishing  poisons  to  applicants 
for  such,  to  assure  yourself,  by  the  appearance  of  the  customer, 
and  by  proper  inquiry  of  them,  that  no  disreputable,  illegal  or 
criminal  purpose  is  intended ;  that  you  require  a  written  order 
from  a  physician,  or  other  responsible  party,  to  accompany  any 
application  for  a  poisoners  substance  presented  by  a  person  under 


DRUGGISTS ADJUDICATED    CASES.  173 

fifteen  years  of  age ;  that  in  all  cases  in  dealing  out  poisonous 
drugs,  in  your  business,  to  applicants  in  person,  you  be  particular 
to  caution  them  in  regard  to  the  properties  and  proper  methods 
of  using  them ;  that  you  entirely  refuse  to  dispense  oils  of  savin 
and  tanzy,  of  ergot,  and  of  substances  of  similar  effect  upon  the 
economy,  unless  upon  the  written  prescription  of  a  physician. 

The  Association  trusts  that  this  appeal  to  pharmaceutists, 
many  of  whom  have  not  yet  felt  the  force  and  weight  of  the 
responsibility  resting  upon  them,  will  awaken  them  to  a  sense  of 
their  accountability,  morally  and  otherwise,  and  be  conducive  to 
individual  safety  and  public  welfare." 

If  druggists  will  act  upon  these  wholesome  suggestions,  they 
will  be  less  often  arraigned  in  court ;  and  when  it  does  happen, 
they  will  have  in  their  own  hands  the  evidence  of  their  inno- 
cence, and  be  able  to  show  upon  whom  the  responsibility  ought 
to  rest. 

THOMAS  AND  WIFE  t>.  WINCHESTER;  2  Selden's  Reps.,  N.  Y.  Court  of  Appeals,  397. 

This  was  an  action  for  damages,  in  the  Supreme  Court,  com- 
menced in  August,  1849,  against  Winchester  and  Gilbert,  for 
injuries  sustained  by  Mrs.  Thomas,  from  the  effects  of  a  quantity 
of  extract  of  belladonna,  administered  to  her  by  mistake,  as  the 
extract  of  dandelion. 

In  fhe  complaint  it  was  alleged  that  the  defendants,  from  the 
year  1843  to  the  1st  of  January,  1849,  were  engaged  in  putting 
up  and  vending  certain  vegetable  extracts,  at  a  store  in  the  city 
of  New  York,  designated  as  "108  John  street,"  and  that  the 
defendant,  Gilbert,  had,  for  a  long  time  previous  thereto,  been 
engaged  at  the  same  place ;  that  among  the  extracts  so  prepared, 
and  sold  by  them,  were  those  respectively  known  as  the  ''extract 
of  dandelion"  and  the  "extract  of  belladonna" — the  former  a 
mild  and  harmless  medicine,  and  the  latter  a  vegetable  poison, 
which,  if  taken  in  such  quantity  as  might  be  safely  administered 
of  the  former,  would  destroy  life,  or  seriously  impair  the  health 
of  the  person  to  whom  the  same  might  be  administered;  that  at 


174  MALPRACTICE. 

some  time  between  the  periods  above  mentioned,  the  defendants 
put  up  and  sold  to  James  S.  Aspinwall,  a  druggist  in  the  city  of 
New  York,  a  jar  of  the  extract  of  belladonna,  which  had  been 
labeled  by  them  as  the  extract  of  dandelion,  and  was  purchased 
of  them  as  such  by  said  Aspinwall ;  that  said  Aspinwall  after- 
ward, and  on  the  10th  of  May,  1845,  relying  upon  the  label  so 
affixed  by  the  defendants,  sold  the  said  jar  of  belladonna  to  Alvin 
Foord,  a  druggist,  of  Cazenovia,  in  Madison  county,  as  the 
-extract  of  dandelion ;  that  afterward,  and  on  the  27th  of  March, 
1849,  the  plaintiff  Mrs.  Thomas,  being  sick,  a  portion  of  the 
extract  of  dandelion  was  prescribed  for  her  by  her  physician,  and 
the  said  Alvin  Foord,  relying  upon  the  label  affixed  by  the  defend- 
ant to  said  jar  of  belladonna,  and  believing  the  same  to  be  the 
extract  of  dandelion,  did,  on  the  application  of  the  plaintiff 
Samuel  Thomas,  sell  and  deliver  to  him,  from  the  said  jar  of  bella- 
donna, a  portion  of  its  contents,  which  was  administered  to  the 
plaintiff',  Mrs.  Thomas,  under  the  belief  that  it  was  the  extract  of 
dandelion,  by  which  she  was  greatly  injured,  so  that  her  life  was 
-despaired  of,  etc.  The  plaintiff  also  alleged  that  all  the  injury 
was  occasioned  by  the  negligence  and  unskillfulness  of  the 
defendant,  in  putting  up  and  falsely  labeling  the  jars  of  bella- 
donna as  the  extract  of  dandelion,  whereby  the  plaintiffs,  as  well 
.as  the  druggists,  and  all  other  persons  through  whose  hands  it 
passed  before  being  administered  as  aforesaid,  were  induced  to 
believe,  and  did  believe,  that  it  contained  the  extract  of  dandelion. 
Wherefore,  etc. 

The  defendants,  in  their  answers,  severally  denied  the  allega- 
tions of  the  complaint,  and  insisted  that  they  were  not  liable  for 
the  medicines  sold  by  Aspinwall  and  Foord. 

The  cause  was  tried  at  the  Madison  Circuit,  in  December,  1849, 
before  MASON,  J.  The  defendant,  Gilbert,  was  acquitted  by  the 
jury,  under  the  direction  of  the  court,  and  a  verdict  was  rendered 
.against  Winchester  for  eight  hundred  dollars.  A  motion  was 
made  for  a  new  trial  upon  the  bill  of  exceptions  taken  at  the 
trial,  and  having  been  denied  at  a  General  Term  in  the  Sixth 


DRUGGISTS — ADJUDICATED   CASES.  175 

District,  the  defendant,  Winchester,  brought  his  appeal.  The 
facts  which  appeared  on  trial  are  sufficiently  stated  in  the  opinion 
of  RUGGLES,  Ch.  J. 

It  was  claimed,  on  the  part  of  the  appellant,  that  there  was  no 
connected  transaction  or  privity  between  Mrs.  Thomas,  the  real 
plaintiff  in  this  suit,  and  the  defendant;  no  state  of  things  to 
render  legally  possible  the  allegation  of  negligence  quo  ad  hoc, 
and  therefore  no  suit  can  be  sustained  by  her  against  the  defend- 
ant. The  defendant  sold  the  article  to  Aspinwall ;  Aspinwall 
sold  to  Foord  ;  Foord  sold  to  Thomas,  the  husband,  who  adminis- 
tered, or  caused  it  to  be  administered  to  the  plaintiff.  The  de- 
fendant was  a  remote  vender  of  the  article,  and  can  not  be  liable 
to  this  plaintiff.  The  gravamen  of  the  complaint  is  negligence, 
in  selling  the  article  with  a  wrong  label ;  no  fraud,  or  criminal,  or 
evil  motive  or  intent,  and  not  even  gross  negligence  is  imputed; 
and  nothing  in  the  nature  of  contract  is  pretended.  It  was  said 
this  differs  in  no  respect  from  any  other  case  of  negligerice  alleged 
against  a  party  standing  at  the  same  remove  from  the  party 
alleging  it.  If  this  action  can  be  sustained,  it  could  equally  be 
sustained  in  any  of  the  following  cases:  A  builds  a  vessel  and 
sells  it  to  B ;  B  sells  it  to  C,  and  D  takes  passage  in  it :  the 
mast,  by  reason  of  great  negligence  in  its  construction,  falls  on  D 
and  breaks  his  limb.  D  can  sust.iin  an  action  against  A  for  the 
injury.  Again,  it  was  said,  a  blacksmith  shoes  a  horse  for  A ; 
A  sells  the  horse  thus  shod  to  B ;  B  sells  to  C.,  and  the  horse, 
while  being  used  by  C.,  stumbles  and  falls,  in  consequence  of 
gross  negligence  in  the  shoeing.  C  can  sue  the  smith  and  recover 
damages. 

A  negligently  sells  unwholesome  provisions  to  B ;  B  sells  to 
€,  who  sells  to  D,  and  D  uses  the  provisions  and  is  injured.  D 
can  sustain  an  action  against  A.  The  very  statement  of  these 
illustrations,  it  was  said,  ought  to  demonstrate  the  fallacy  of  the 
claim  of  the  plaintiff.  In  the  case  of  The  Mayor  of  Albany  v. 
Cunliffj  2  Comst.  180,  it  is  said:  "The  reason  why  an  action  can 
not  be  sustained,  in  such  cases,  is,  that  there  is  no  connection 


176  MALPRACTICE. 

between  the  wrong  done  and  the  person  whom  it  is  sought  to 
charge  for  the  consequences." 

It  was  also  claimed,  on  the  part  of  the  defense,  that  if  this 
action  was  sustained,  the  defendant  might  be  liable  to  innumera- 
ble suits,  and  at  any  period  of  time,  however  distant.  No  statute 
of  limitations  could  protect  him,  for  the  action  would  not  be 
barred  until  six  years  after  the  injury,  although  the  defendant 
may  have  sold  the  article  many  years  before.  He  would  be  liable, 
too,  for  the  carelessness  of  all  intermediate  venders,  and  this 
without  notice  of  the  dangers  or  the  means  of  averting  it.  Be- 
sides, if  this  defendant  is  liable,  such  liability  may  be  traced  back 
indefinitely,  to  a  vender  at  the  fiftieth  or  hundredth  remove  from 
the  plaintiff.  A  doctrine  involving  such  consequences  can  not  be 
sustained.  The  defendant  was  charged  substantially  with  the 
negligence  of  Foord  and  Aspinwall,  and  this  can  not  be  the 
foundation  of  an  action  against  him.1 

The  rule  sought  to  be  applied  to  the  case  by  the  defendant 
was,  that  each  vender  is  liable  to  his  immediate  vendee,  for  any 
damage  legitimately  sustained  by  the  latter.  It  was  said  this 
rule  is  just  and  safe,  and  a  sufficiently  comprehensive  one.  It 
furnishes  adequate  protection  to  all  parties,  and  gives  the  pur- 
chaser his  remedy  against  the  person  in  whom,  by  the  very  act 
of  purchase,  he  shows  that  he  placed  reliance.2  If  the  label 
affixed  to  the  article  in  question  could  be  deemed  a  false  affirma- 
tion to  each  party  relying  upon  it  when  buying,  it  could  be  available 
to  a  party  only  who  should  purchase  on  the  credit  given  to  the 
label.  Here  there  is  no  pretense  that  the  real  plaintiff  bought 
at  all ;  or  even  that  her  husband,  or  his  agent,  ever  saw  the  label, 
or  acted  on  the  faith  of  it.  No  such  fact  is  alleged  in  the  complaint. 

These  were  the  grounds  assumed,  and  undoubtedly  the 
strongest  that  could  be  taken  by  the  defense. 


1  Mayor  of  Albany  v.  Cunliff,  2  Comst.  165—180 ;  Blunt  v.  Aiken,  15  Wend. 
622  ;  Shiells  v.  Blackburn,  1  H.  Bl.  158. 

2  Broom  on  Parties  to  Actions,  Sec.  299,  p.  248. 


~»  DRUGGISTS ADJUDICATED    CASES.  177 

On  the  part  of  the  respondent,  by  N.  Hill,  jr.,  it  was  argued  : 

1.  That  by  affixing  a  false  label  to  the  poison,  and  sending  it 
into  market  in  that  condition,  so  as  thereby  to  mislead  others, 
and  endanger  human  life,  was  an  unlawful  act,  for  which  the 
defendant  is  responsible,  whether  he  did  it  wilfully  or  negligently.1 

2.  To  entitle  the  aggrieved  party  to  sue  in  such  case,  no 
priority  is  necessary,  except  such  as  is  created  by  the  unlawful 
act,  and  the  consequential  injury ;  priority  of  contract  being  out 
of  the  question.2 

3.  The  injury  is  not  rendered  too  remote  to  sustain  a  recovery 
because  separated  from  the  unlawful  act  by  intervening  events, 
however  numerous,  or  of  whatever  kind,  provided  they  are  the 
natural  and  probable  consequences  of  the  act ;  i.  e.,  such  as  would 
be  likely  to  follow,  and  might  be  easily  foreseen.3     Where  the 
unlawful  act  is,  in  its  nature,  likely  to  produce  the  very  events 
which  have  followed,  the  author  of  it  may  be  treated  as  having 
caused  such  succeeding  events,  though  they  consisted  of  the  acts 
of  third  persons.     Causa  causes  est  causa  causati.4 

The  false  label  was  not  only  likely  to  lead  druggists  and  others 
into  the  mistakes  which  have  followed,  but  such  was  its  direct  and 
inevitable  tendency.5  The  rule  contended  for,  it  was  said,  did  not 
extend  the  sphere  of  accountability  to  impracticable  or  unjust 
limits,  but  confines  it  to  consequences  so  proximate  as  to  be 
expected  or  readily  foreseen,  and  for  which  every  wrong-doer  is, 
and  ought  to  be  answerable.  If  the  defendant's  act  had  been 


1  5  Maule  &  Sel.  198  ;  4  Denio,  464,  466-7  ;  10  Eng.  Com.  Law.  R.  190;  6 
Hill,  292  ;  23  Eng.  Com.  Law  R.  52 ;  2  W.  Bl.  892-3 ;  19  John.  381 ;  3  Maule 
&  Sel.  11,  14,  15  ;  11  Mass.  159  :  17  Wend.  499,  500  ;  5  Denio,  266. 

2  1  Chitty's  Gen.  Pr.  12  ;  10  Eng.  Com.  Law  R.  190;  12  Mod.  639  ;  4  Denio, 
464;  11  Price,  400:  35  Eng.  Com.  Law  R.  292  ;  6  Hill,  294. 

3  1  Smith's  Lead.  Cases,  132,  note  ;  23  Eng.  Com.  Law  R.  54-5  ;  5  Denio,  266 

4  19  John.  381 ;  4  Denio,  404 ;  2  W.  Bl.  892-3-4,  899,  900  5  Broom's  Leg. 
Max.  168-9  ;  5  Maul.  &  Sel.  198  ;  41  Eng.  Com.  Law  R.  425;  24  Id.  272  ;  23 
Id.  523  ;  28  Id.  222 ;  12  Mod.  639  ;  19  Wend.  345-6  ;  4  Denio,  317  ;  2  Wend. 
385  ;  3  Mete.  469  ;  2  Mees  &  Welsb.  519,  525. 

5  Eng.  Com.  Law  R.  41-2  ;  3  Met.  469. 

12 


178  MALPRACTICE. 

done  willfully,  he  would  have  been  chargeable  with  the  conse- 
quences, including  the  mistake  of  Dr.  Foord,  etc.,  on  the  legal 
presumption  that  he  intended  them.1  The  sphere  is  the  same,  so 
far  as  responsibility  is  concerned,  when  the  wrong  consists  of 
negligent  acts,  though  the  measure  of  indemnity  and  punishment 
may  be  different2  There  is  no  pretense  for  saying  that  the 
injury  was  caused  by  the  illegal  act  of  a  third  person,  and  not  by 
that  of  the  defendant;  the  jury  having  directly  found  that  the 
intermediate  actors  were  not  negligent.  This  rule  never  applies 
when  the  intervening  wrong  does  not  furnish  a  distinct  right  of 
action  for  the  whole  injury  sustained.  Mrs.  Thomas  could  not  get 
redress  by  an  action  ex-contractu  against  Dr.  Foord,  or  any  one 
else;  and  to  apply  the  rule  here,  therefore,  would  contravene  the 
maxim,  ubi  jus  ibi  remedium.  Again,  the  rule  does  not  apply  when 
the  intervening  wrong,  though  actionable,  is  the  natural  and 
probable  consequence  of  the  defendant's  tort.3 

But  the  injury  in  this  case  was  the  immediate  consequence  of 
the  defendant's  act.  The  false  label  was  a  continuing  representa- 
tion or  direction  by  him,  and  operated  as  the  instantaneous  cause 
of  the  mistake  of  Dr.  Foord.4 

The  injury  being  sufficiently  connected  with  the  defendant's 
wrongful  act,  it  is  no  defense  that  he  had  parted  with  the  poison 
under  a  formal  sale,  and  placed  it  in  the  custody  of  others — 
this  being  the  very  mode  by  which  he  caused  the  injury.  The 
inability  of  the  defendant  to  prevent  the  injury  at  the  time,  is 
not  an  excuse,  but  part  of  the  wrong.  Besides,  the  label  was  a 
continuing  authority,  or  direction,  by  the  defendant,  for  the  use 

1  3  Bouv.  Inst.  348  ;  10  Wend.  649  ;  3  Mete.  469—472. 

2  Archb.  Or.  PI.  421.  2d  ed.  1848 ;  2  Ld.  Ray.  1583 ;  23  Eng.  Com.  Law  R. 
54-5  ;  3  Maule  &  Sel.  14,  15  ;  1  Lewin's  Cr.  Cases,  169  ;  2  Stark  Kv.  526,  Am. 
ed.  3837;  5  Maule  &  Sel.  198;  Broom's  Leg.  Max.  168-9;  4  Denio,  464;  41 
Eng.  Com.  Law  R.  422  ;  24  Id.  272  ;  19  Wend.  345-6. 

8  1  Smith's  Lead.  Cases,  132,  note :  Brown's  Leg.  Max.  168-9  ;  5  Barn.  & 
Cres.  356  ;  23  Eng.  Com.  Law  R.  52,  54 ;  Id.  422,  425  :  24  Id.  272  ;  5  Maule  & 
Sel.  198  ;  19  Wend.  345-6  ;  2  Mees  &  Welsh.  519,  525  ;  5  Denio,  266. 

*  23  Eng.  Com.  Law  R.  41-2  ;  6  Mete.  469  ;  1  Id.  193. 


DRUGGISTS ADJUDICATED    CASES.  179 

of  the  poison,  and  he  was  bound  to  indemnify  against  the  acts 
which  it  was  likely  to  cause  when  sold  in  that  condition.1 

The  rule  contended  for  by  the  defendant,  that  each  vender  is 
liable  only  to  his  immediate  vendee,  has  no  application  to  the 
present  case.  This  rule  is  founded  on  the  principle  that  a  right 
or  duty  wholly  created  by  contract,  can  only  be  enforced  between 
the  contracting  parties. 

In  any  view  of  the  case,  the  defendant,  it  must  be  admitted,  is 
ultimately  responsible  for  the  injury  to  Mrs.  Thomas,  unless  those 
who  have  been  the  unconscious  agents  of  the  wrong  are  to  bear 
the  burden,  and  the  author  of  it  to  escape;  and  the  law  does  not 
require  circuity  of  action,  but  abhors  it.2 

The  opinion  of  the  court,  by  Chief-Justice  RUGGLES,  is  of  great 
ability,  and  undoubtedly  embodies  the  law  in  this  class  of  cases. 
We  therefore  give  it  entire : 

"  This  is  an  action  brought  to  recover  damages  from  the  de- 
fendant for  negligently  putting  up,  labeling  and  selling  as  and  for 
the  extract  of  dandelion,  which  is  a  simple  and  harmless  medi- 
cine, a  jar  of  the  extract  of  belladonna,  which  is  a  deadly  poison ; 
by  means  of  which  the  plaintiff  Mary  Ann  Thomas,  to  whom, 
being  sick,  a  dose  of  dandelion  was  prescribed  by  a  physician,  and 
a  portion  of  the  contents  of  the  jar  was  administered  as  and  for 
the  extract  of  dandelion,  was  greatly  injured,  etc. 

The  facts  proved  were  briefly  these :  Mrs.  Thomas,  being  in  ill 
health,  her  physician  prescribed  for  her  a  dose  of  dandelion.  Her 
husband  purchased  what  was  believed  to  be  the  medicine  pre- 
scribed, at  the  store  of  Dr.  Foord,  a  physician  and  druggist  in 
Cazenovia,  Madison  county,  where  the  plaintiff  resides. 

A  small  quantity  of  the  medicine  thus  purchased  was  adminis- 
tered to  Mrs.  Thomas,  on  whom  it  produced  very  alarming 


1 12  Mod.  630 ;  23  Eng.  Com.  Law  R.  41-2 ;  Id.  52,  54-5 ;  28  Id.  220 ;  3 
Mete.  469  ;  4  Denio,  311,  317  ;  2  Comst.  180;  19  Wend.  345-6. 

2  2  Saund.  150,  per  Kelynge,  C.  J.:  Willis'  R.  401-2 ;  2  H.  Bl.  350-1,  per 
Heath,  J.;  4  Wend.  492,  per  Marcy,  J.;  Co.  Litt.  348,  a. 


180  MALPRACTICE. 

effects — such  as  extreme  coldness  of  the  surface  and  extremities, 
feebleness  of  circulation,  spasms  of  the  muscles,  giddiness  of  the 
head,  dilation  of  the  pupils  of  the  eyes,  and  derangement  of  the 
mind.  She  recovered,  however,  after  some  time,  from  its  effects, 
although,  for  a  short  time,  her  life  was  thought  to  be  in  great 
danger.  The  medicine  administered  was  belladonna,  and  not  dan- 
delion. The  jar  from  which  it  was  taken  was  labeled,  "£  ft> 
dandelion,  prepared  by  A.  Gilbert,  No.  108  John  street,  N.  Y., 
Jar  8  03.  It  was  sold  for,  and  believed  by  Dr.  Foord  to  be,  the 
extract  of  dandelion,  from  Jas.  S.  Aspinwall,  a  druggist  at  New 
York.  Aspinwall  bought  it  of  the  defendant  as  extract  of  dan- 
delion, believing  it  to  be  such.  The  defendant  was  engaged  at 
No.  108  John  street,  New  York,  in  the  manufacture  and  sale  of 
certain  vegetable  extracts,  for  medicinal  purposes,  and  in  the  pur- 
chase and  sale  of  others.  The  extracts  manufactured  by  him 
were  put  up  in  jars  for  sale,  and  those  which  he  purchased  were 
put  up  by  him  in  like  manner.  The  jars  containing  extracts 
manufactured  by  himself,  and  those  containing  extracts  purchased 
by  him  from  others,  were  labeled  alike.  Both  were  labeled  like 
the  jars  in  question,  as  "prepared  by  A.  Gilbert."  Gilbert  was 
a  person  employed  by  the  defendant  at  a  salnry,  as  an  assistant 
in  his  business.  The  jar  was  labeled  in  Gilbert's  name  because 
he  had  been  previously  engaged  in  the  same  business,  on  his  own 
account,  at  No.  108  John  street,  and  probably  because  Gilbert's 
labels  rendered  the  articles  more  salable.  The  extract  contained 
in  the  jars  sold  to  Aspinwall,  and  by  him  to  Foord,  was  not  man- 
ufactured by  the  defendant,  but  was  purchased  by  him  from  an- 
other manufacturer  or  dealer.  The  extract  of  dandelion  and  the 
extract  of  belladonna  resemble  each  other  in  color,  consistence, 
smell  and  taste;  but  miy,  on  careful  examination,  be  distin- 
guished, the  one  from  the  other,  by  those  who  are  well  ac- 
quainted with  these  articles.  Gilbert's  labels  were  p.iid  for 
by  Winchester,  and  used  in  his  business  with  his  knowledge  and 
consent. 


^fiUGGISTS ADJUDICATED    CASES.  181 

The  defendants'  counsel  moved  for  non-suit  on  the  following 
grounds : 

1.  That  the  action  could  not  be  sustained,  as  the  defendant 
was  the  remote  vender  of  the  article  in  question,  and  that  there 
was  no  connection,  transaction  or  privity  between  him  and  the 
plaintiffs,  or  either  of  them. 

2.  That  this  action  sought  to  charge  the  defendant  with  the 
negligence  of  Aspinwall  and  Foord. 

3.  That  the  plaintiffs  were  Table  to  and  chargeable  with  the 
negligence  of  Aspinwall  and  Foord,  and   therefore   could    not 
maintain  this  action. 

4.  That,  according  to  the  testimony,  Foord  was  chargeable 
with  neg  igence,  and  that  the  plaintiffs  therefore  could  not  sustain 
this  suit  against  the  defendant.     If  they  could  sustain  a  suit  at 
all,  it  would  be  against  Foord  only. 

5.  That  this  suit,  being  brought  for  the  benefit  of  the  wife, 
and  alleging  her  as  the  meritorious  cause  of  action,  can  not  be 
sustained. 

C.  That  there  was  not  sufficient  evidence  of  negligence,  on  the 
part  of  the  defendant,  to  go  to  the  jury. 

The  Judge  overruled  the  motion  for  non-suit,  and  the  defend- 
ants' counsel  excepted. 

The  Judge,  among  other  things,  charged  the  jury  that  if  they 
should  find  from  the  evidence  that  either  Aspinwall  or  Foord  was 
guilty  of  negligence  in  vending  as  and  for  dandelion  the  extract 
taken  by  Mrs.  Thomas,  or  that  the  plaintiffj  Thomas,  or  those 
who  administered  it  to  Mrs.  Thorn  is,  were  chargeable  with  negli- 
gence in  administering  it,  the  plaintiffs  were  not  entitled  to 
recover;  but  if  they  were  free  from  negligence,  and  if  the  de- 
fendant, Winchester,  was  guilty  of  negligence  in  putting  up  and 
vending  the  extracts  in  question,  the  plaintiffs  were  entitled  to 
recover,  provided  the  extract  administered  to  Mrs.  Thomas  was 
the  same  which  was  put  up  by  the  defendant  and  sold  by  him  to 
Aspiuwall,  and  by  Aspinwall  to  Foord.  That  if  they  should  find 


182  MALPRACTICE. 

the  defendant  liable,  the  plaintiffs  in  this  action  were  entitled  to 
recover  damages  only  for  personal  injury  and  suffering  of  the 
wife,  and  not  for  loss  of  service,  medical  treatment  or  expense  to 
the  husband,  and  that  the  recovery  should  be  confined  to  the 
actual  damage  suffered  by  the  wife. 

The  action  was  properly  brought  in  the  name  of  the  husband 
and  wife  for  the  personal  injury  and  suffering  of  the  wife,  and 
the  case  was  left  to  the  jury  with  the  proper  directions  on  that 
point. 

The  case  depends  on  the  first  point  taken  by  the  defendant, 
on  his  motion  for  a  non-suit;  and  the  question  is,  whether  the 
defendant,  being  a  remote  vender  of  the  medicine,  and  there 
being  no  privity  or  connection  between  him  and  the  plaintiffs,  the 
action  can  be  maintained. 

If,  in  labeling  a  poisonous  drug  with  the  name  of  a  harmless 
medicine,  for  public  market,  no  duty  was  violated  by  the  defend- 
ant, excepting  that  which  he  owed  to  Aspinwall,  his  immediate 
vendee,  in  virtue  of  his  contract  of  sale,  this  action  can  not  be 
maintained.  If  A  build  a  wagon  and  sell  it  to  B,  who  sells  it  to 
C,  and  C  hires  it  to  D,  who,  in  consequence  of  the  gross  negli- 
gence of  A  in  building  the  wagon,  is  overturned  and  injured,  D 
can  not  recover  damages  against  A,  the  builder.  A's  obligation 
to  build  the  wagon  faithfully,  aiises  solely  out  of  his  contract  with 
B.  The  public  have  nothing  to  do  with  it.  Misfortune  to  third 
persons,  not  parties  to  the  contract,  would  not  be  a  natural 
and  necessary  consequence  of  the  builder's  negligence ;  and  such 
negligence  is  not  an  act  immediately  dangerous  to  human  life. 

So,  for  the  same  reason,  if  a  horse  be  defectively  shod  by  a 
smith,  and  a  person  hiiing  tho  horse  from  the  owner  is  thrown 
and  injured  in  consequence  of  the  smith's  negligence  in  shoeing, 
the  smith  is  not  liable  for  the  injury.  The  smith's  duty,  in  such 
case,  grows  exclusively  out  of  his  contract  with  the  owner  of  the 
horse ;  it  was  a  duty  which  the  smith  owed  to  him  alone,  and  to 
no  one  else ;  and  although  the  injury  to  the  rider  may  have  hap- 
pened in  consequence  of  the  negligence  of  the  smith,  the  latter 


DRUGGISTS ADJUDICATED    CASES.  183 

was  not  bound,  either  by  his  contract  or  by  any  consideration  of 
public  policy  or  safety,  to  respond  for  his  breach  of  duty  to  any 
one  except  the  person  he  contracted  with. 

This  was  the  ground  on  which  the  case  of  Winterbottom  v. 
Wright  was  decided.  A  contracted  with  the  Postmaster-General 
to  provide  a  coach  to  convey  the  mail-bags  along  a  certain  line 
of  road,  and  B  and  others  also  contracted  to  furnish  horses  for 
coach  along  the  same  line.  B  and  his  co-contractors  hired  C,  who 
was  the  plaintiff,  to  drive  the  coach.  The  coach,  in  consequence 
of  some  latent  defect,  broke  down ;  the  plaintiff  was  thrown  from 
the  seat  and  lamed.  It  was  held  that  C  could  not  maintain  an 
action  against  A  for  the  injury  thus  sustained.  The  reason  of 
the  decision  is  best  stated  by  Baron  Rolfe.  A's  duty  to  keep  the 
coach  in  good  condition  was  a  duty  to  the  Postmaster-General, 
with  whom  he  made  his  contract,  and  not  a  duty  to  the  driver 
employed  by  the  owners  of  the  horses. 

But  the  case  in  hand  stands  on  a  different  ground.  The  defend- 
ant was  a  dealer  in  poisonous  drugs ;  Gilbert  was  his  agent  in 
preparing  them  for  the  market.  The  death  or  great  bodily  harm 
of  some  person  was  the  natural  and  almost  inevitable  result  of 
the  sale  of  belladonna,  by  means  of  the  false  label. 

Gilbert,  the  defendant's  agent,  would  have  been  punished  for 
manslaughter,  if  Mrs.  Thomas  had  died  in  consequence  of  taking 
the  falsely-labeled  medicine.  Every  man  who,  by  his  culpable 
negligence,  causes  the  death  of  another,  although  without  intent 
to  kill,  is  gnilty  of  manslaughter. 

1  So  highly  does  the  law  value  human  life,  that  it  admits  of  no 
justification,  wherever  life  has  been  lost,  and  the  carelessness  or 
negligence  of  one  person  has  contributed  to  the  death  of  another  ;n 
and  this  rule  applies  not  only  where  the  death  of  one  is  occa- 
sioned by  the  negligent  act  of  another,  but  where  it  is  caused  by 
the  negligent  omission  of  duty  of  that  other.2  Although  the 


1  Kegina  v.  Swindall,  2  Car.  &  Kir.  232-3. 
»  2  Car.  &  Kir.  368,  371. 


184  MALPRACTICE. 

defendant,  Winchester,  may  not  be  answerable  criminally  for  the 
negligence  of  his  agent,  there  can  be  no  doubt  of  his  liability  in 
a  civil  action,  in  which  the  act  of  the  agent  is  to  bu  regarded  a3 
the  act  of  the  principal. 

Ill  respect  to  the  wrongful  and  criminal  character  of  the  negli- 
gence complained  of,  this  case  differs  widely  from  those  put  by 
the  defendant's  counsel.  No  such  imminent  danger  existed  in 
those  cases.  In  the  present  case,  the  sale  of  the  poisonous  article 
was  made  to  a  dealer  in  drugs,  and  not  to  a  consumer.  The 
injuiy,  therefore,  was  not  like'y  to  fall  on  him,  or  on  his  vendee, 
who  was  also  a  dealer ;  but  much  more  likely  to  be  visited  on  a 
remote  purchaser,  as  actually  happened.  The  defendant's  negli- 
gencj  put  human  life  in  imminent  danger.  Can  it  be  said  that 
there  was  no  duty,  on  the  part  of  the  defendant,  to  avoid  the 
creation  of  that  danger  by  the  exercise  of  greater  caution,  or 
that  the  exercise  of  that  caution  was  a  duty  only  to  his  immediate 
vendee,  whose  life  was  not  endangered  ?  The  defendant's  duty 
arose  out  of  the  nature  of  his  business,  and  the  dangers  to  others 
incident  to  its  mismanagement.  Nothing  but  mischief  like  that 
which  actually  happened  could  have  been  expected  from  sending 
the  poison  f  ilsely-labeled  into  the  market ;  and  the  defendant  is 
justly  responsible  for  the  probable  consequences  of  the  act.  The 
duty  of  exercising  caution  in  this  respect  did  not  arise  out  of 
the  defendant's  contract  of  sale  to  Aspinwall.  The  wrong  done 
by  the  defendant  was  in  putting  the  poison,  mis-labeled,  into  the 
hands  of  Aspinwall,  as  an  article  of  merchandise,  to  be  sold,  and 
afterward  used  as  the  extract  of  dandelion,  by  some  person  then 
unknown.  The  owner  of  a  horse  and  cart,  who  leaves  them  un- 
attended in  the  street,  is  liable  for  any  damage.1  The  owner  of 
a  loaded  gun,  who  puts  it  into  the  hands  of  a  child,  by  whose 
indiscretion  it  is  discharged,  is  liable  for  the  damage  occasioned 
by  the  discharge.2  The  defendant's  contract  of  sale  to  Aspinwall 

1  Lynch  v.  Karelin,  1  Ad.  &  Ellis,  N.  S.  29  ;   Illidge  v.  Goodwin,  5  Car.  & 
Payne,  190. 

2  5  Maule  &  Sel.  198. 


DRUGGISTS ADJUDICATED    CASES.  185 

does  not  excuse  the  wrong  done  to  the  plaintiffs.  It  was  a  part 
of  the  means  by  which  the  wrong  was  effected.  The  plaintiffs' 
injury  and  their  remedy  would  have  stood  on  the  same  principle, 
if  the  defendant  had  given  the  belladonna  to  Dr.  Foord  without 
price,  or  if  he  had  put  it  in  his  shop  without  knowledge,  under 
circumstances  which  would  probably  have  led  to  its  sale  on  the 
faith  of  the  labi'l. 

In  Longmeid  v.  Holliday,1  the  distinction  is  recognized  between 
an  act  of  negligence  immediately  dangerous  to  the  lives  of  others, 
and  one  that  is  not  so.  In  the  former  case,  the  party  guilty  of 
negligence  is  liable  to  the  party  injured,  whether  there  be  a  con- 
tract b. --twceii  them  cr  not;  in  the  latter,  the  negligent  party  is 
liable  only  to  the  parly  with  whom  he  contracted,  and  on  the 
ground  that  negligence  is  a  breach  of  the  contract. 

The  defendant,  on  the  trial,  insisted  that  Aspinwall  and  Foord 
were  guilty  of  negligence  in  selling  the  article  in  question  for 
what  it  was  represented  to  be  in  the  label ;  and  that  the  suit,  if 
it  could  be  .sustained  at  all,  should  have  been  brought  against 
Foord.  The  Judge  charged  the  jury  that  if  they,  or  either  of 
them,  were  guilty  of  negligence  in  selling  the  belladonna  for 
dandelion,  the  verdict  must  be  for  the  defendant,  and  left  the 
question  of  negligence  to  the  jury,  who  found  on  that  point  for 
the  plaintiff.  If  the  case  really  depended  on  the  point  thus  raised, 
the  question  was  properly  left  to  the  jury.  But  I  think  it  did  not. 
The  defendant,  by  affixing  the  label  to  the  jar,  represented  its 
contents  to  be  dandelion,  and  to  have  been  "prepared"  by  his 
agent,  Gilbert.  The  word  *  prepared,'  on  the  label,  must  be  under- 
stood to  mean  that  the  article  was. manufactured  by  him,  or  that  it 
had  passed  through  some  process  under  his  hands,  which  would 
give  him  personal  knowledge  of  its  true  name  and  quality. 
Whether  Foord  was  justified  in  selling  the  article  upon  the  faith 
of  the  defendant's  label,  would  have  been  an  open  question  by  the 


1  6  Law  and  Eq.  Rep.  562. 
Sec,  also,  Barnes  v.  Ward,  9  C.  B.  392. 


18G  MALPRACTICE. 

plaintiffs  against  him,  and  I  wish  to  be  understood  as  giving  no 
opinion  on  that  point.  But  it  seems  to  me  to  be  clear  that  the 
defendant  can  not,  in  any  case,  set  up  as  a  defense,  that  luord 
sold  the  contents  of  the  jar  as  and  for  what  the  defendant  repre- 
sented it  to  be.  The  label  conveyed  the  idea  distinctly  to  Foord 
that  the  contents  of  the  jar  was  the  extract  of  dandelion,  and 
that  the  defendant  knew  it  to  be  such.  So  far  as  the  defendant 
is  concerned,  Foord  was  under  no  obligation  to  test  the  truth  of 
the  representation.  The  charge  of  the  Judge,  in  submitting  to 
the  jury  the  question  in  relation  to  the  negligence  of  Foord  and 
Aspinwall  can  not  be  complained  of  by  the  defendant. 

GARDINER,  J.,  concurred  in  affirming  the  judgment,  on  the 
ground  that  selling  the  belladonna  without  a  label  indicating  that 
it  was  a  poison,  was  declared  a  misdemeanor  by  statute ;!  but 
expressed  no  opinion  upon  the  question  whether,  independent 
of  the  statute,  the  defendant  would  have  been  liable  to  these 
plaintiffs. 

GRIDLEY,  J.,  was  not  present  when  the  cause  was  decided.  All 
the  other  members  of  the  court  concurred  in  the  opinion  deliv- 
ered by  Ch.  J.  RUGGLES. 

Judgment  affirmed." 

This  decision,  and  the  reasons  upon  which  it  is  based,  settles 
the  question,  as  to  the  responsibility  of  druggists  and  manufac- 
turers of  medicines,  if  the  medicine  is  not  what  it  purports  to  be ; 
and  it  should  be  so.  Those  who  assume  the  responsible  position 
of  making  and  vending  powerful  medicines,  should  be  held  to  a 
rigid  responsibility,  because,  after  the  compound  has  left  the 
hands  of  the  chemist,  not  one  person  in  ten  thousand  can  detect 
an  error,  if  there  is  one,  however  dangerous  it  may  be. 

In  the  above  case,  the  Judges,  after  coming  face  to  face  with 
the  question,  whether  the  intermediate  venders  were  also  liable  in 
damages,  and  looking  at  it  fearfully,  thought  best  to  give  no 
opinion  on  that  point.  The  charge  of  the  court  below  had  been, 

*  2  R.  S.  694,  sec.  23. 


DRUGGISTS ADJUDICATED   CASES.  187 

that  if  there  had  been  any  carelessness  on  the  part  of  Aspinwall 
or  Foord,  then  judgment  must  be  for  the  defendants;  that  if 
they  trusted  to  the  label  as  indicating  the  article  sold,  then 
they  were  innocent.  It  is  probable  that  if  the  Superior  Court 
had  given  an  opinion  on  this  point,  it  would  have  been,  that  drug- 
gists have  a  right  to  expect  that  a  medicine  is  what  its  label 
indicates,  especially  if  prepared  by  a  respectable  and  well-known 
manufacturer. 

If  this  was  not  the  rule,  every  vender,  whether  druggist  or 
not,  would  have  to  keep  a  chemist,  in  whom  he  had  confidence,, 
to  analyze  every  article  he  sold,  which  would  certainly  defeat  a 
convenient  and  general  supply.  It  is  probable  that  the  importer 
of  foreign  preparations  would  not  be  protected  by  the  label  of  a 
foreign  manufacturer. 

FLEET  &  SEMPLE  «.  HOLLENKEMP;  13  B.  Monroe,  219. 

Another  important  case,  involving  some  new  and  important 
points,  concerning  the  rights  and  responsibilities  of  druggists,  as 
well  as  of  the  purchaser,  was  decided  in  1852,  in  Kentucky. 

John  Hollenkemp  sued  Wm.  T.  Fleet  and  Samuel  P.  Semple, 
partners  in  the  business  of  vending  drugs  by  retail,  in  an  action 
upon  the  case,  for  having,  through  negligence,  permitted  a  por- 
tion of  the  poisonous  drug  called  cantharides  to  be  intermingled 
with  some  snakeroot  and  Peruvian  bark,  which  he  had  purchased 
at  their  drug  store,  and  which  he,  being  then  indisposed,  by  the 
advice  of  his  physician,  had  taken  as  medicine  for  his  restora- 
tion, not  knowing  that  the  poison  had  been  mixed  with  the  bark 
and  snakeroot,  and  that,  in  consequence,  he  had  been  made  very 
sick,  endured  great  suffering,  pain  and  agony,  and  that  his  health 
had  been  thereby  permanently  injured.  The  defendants  appeared 
and  pleaded  not  guilty.  There  was  a  trial,  verdict,  and  judg- 
ment against  the  defendants  for  $1,141  75  damages,  and  costs 
of  suit. 

The  defendants  moved  the  court  to  set  aside  the  verdict  and 
judgment,  and  grant  a  new  trial,  upon  various  grounds. 


188  MALPRACTICE. 

One  ground  was,  that  the  damages  found  by  the  jury  were 
excessive,  and  unwarranted  by  the  facts  of  the  case,  and  the 
proof  in  the  cause. 

Another  reason  was,  that  the  court  erred  in  giving  the  in- 
structions asked  by  the  plaintiff 's  counsel,  and  in  refusing  those 
asked  by  the  counsel  of  the  defendants. 

The  court  refusing  to  grant  a  new  trial,  the  defendants  filed 
their  bill  of  exceptions  to  these  rulings  of  the  court,  and  appealed 
to  the  Court  of  Appeals.  The  evidence  was  reduced  to  writing, 
and  accompanied  the  appeal.  It  was,  in  substance,  as  follows : 
The  plaintiff,  having  been  sick  for  some  time,  had  improved,  and 
was  convalescent.  A  tonic  preparation  was  recommended  by  the 
attending  physician,  who  made  out  a  written  prescription  for  the 
plaintiff  as  follows :  that  he  should  procure  two  ounces  of  snake- 
root  and  two  ounces  of  Peruvian  bark,  in  the  form  of  powder,  to 
be  mixed  and  divided  into  four  portions ;  to  be  made  into  a  tea, 
by  the  application  of  three  pints  of  water  to  each  portion  of 
snakeroot  and  bark ;  the  patient  to  take  half  of  a  tea-cup  full 
of  the  decoction  twice  each  day.  This  prescription  was  sent  by 
the  plaintiff  to  the  defendants'  drug  store,  to  be  filled.  There 
the  two  ounces  of  snakeroot  and  Peruvian  bark  were,  by  the 
clerk,  in  the  presence  of  one  of  the  defendants,  put  into  a  mill 
to  be  ground  into  powder,  and  passed  through  the  mill  thus  pul- 
verized. It  was  then  put  up  in  separate  papers,  as  directed  by 
the  prescription,  and  delivered  to  the  plaintiff's  messenger,  who 
carried  them  to  the  plaintiff.  A  tea  was  made  of  one  of  the 
potions.  The  patient  drank  a  half  tea-cup  full  of  the  prepara- 
tion, and  shortly  afterward  the  effect  produced  by  the  dose  v  as 
so  unexpected  and  so  extraordinary,  that  the  same  physician  was 
sent  for  who  had  drawn  up  the  prescription,  who,  upon  his  arrival, 
found  his  patient  laboring  under  all  those  violent  symptoms 
which,  according  to  all  the  evidence  on  the  subject,  are  produced 
by  cantharides,  when  taken  in  sufficient  quantity  into  the 
stomach.  The  physician's  suspicions  being  aroused,  he  procured 
and  examined  the  three  remaining  potions  of  medicine,  as  com- 


DRUGGISTS — ADJUDICATED    CASES.  189 

pounded  at  defendants'  drug  store,  and  easily  detected  the  pres- 
ence of  Spanish  flies  in  the  mixture.  They  were  taken  to  the 
drug  store  to  inquire  into  the  matter.  There  the  potions  were 
recognized  as  having  been  compounded  and  put  up  in  that  store, 
by  the  clerk,  and  the  fact  that  some  Spanish  flies  had  been,  in 
some  way,  mixed  with  the  bark  and  snakeroot,  was  detected  and 
admitted. 

The  effects  upon  the  patient,  from  the  proof,  were  most  vio- 
lent, dangerous  and  excruciating,  and  precisely  such  as  would  be 
produced  by  a  sufficient  dose  of  canthaiides.  There  was  a  con- 
trariety of  opinion  expressed  by  the  physicians  examined,  as  to 
the  durability  and  permanency  of  the  injurious  effects  produced 
by  this  drug.  The  attending  physician  gave  it  as  his  opinion 
that  the  symptoms  exhibited  were  produced  by  the  cantharides, 
and  that  the  plaintiff's  health  had  been  permanently  injured  by 
the  dose  which  he  had  taken.  Several  other  doctors  examined, 
gave  it  as  their  opinion  that,  generally,  the  effects  of  this  drug, 
unless  taken  in  sufficient  quantity  to  produce  death,  would  be 
only  temporary  and  evanescent ;  that  they  had  never  known  an 
instance  where  the  health  of  a  person  surviving  the  immediate 
effects  produced  by  cantharides  had  been  permanently  injured, 
though  they  did  not  deny  but  that  such  might  be  the  conse- 
quence in  some  cases,  where  the  peculiar  condition  of  the  patient's 
system  was  such  as  that  the  poisonous  quality  of  the  drug  might 
be  more  pernicious  and  virulent  in  its  effects,  and  that  in  special 
cases  it  might  cause  permanent  ill  health. 

There  was  evidence  introduced  by  the  defendants  which  was 
intended  to  screen  and  exempt  them  and  their  agent,  the  clerk, 
fiom  the  charge  or  imputation  of  having  been  guilty  of  inex- 
cusable negligence  in  compounding  and  putting  up  the  medicines, 
as  required  by  the  prescription  furnished  by  the  plaintiff's  med- 
ical adviser. 

The  physicians  examined  as  witnesses,  all  concur  in  proving 
that  the  violent  and  injurious  effects  produced  upon  the  plaintiff 
by  the  dose  which  had  been  taken  by  him,  could  not  have 


190  MALPRACTICE. 

resulted,  if  it  had  contained  nothing  but  the  snakeroot  and  Peru- 
vian bark  ;  that,  when  taken  in  the  quantities  as  administered  to 
the  plaintiff,  they  are  harmless  and  innocent  drugs,  and  the  fact, 
as  deduced  from  all  the  testimony  in  the  case,  is  conclusively 
established,  that,  although  the  plaintiff  sent  them  a  prescription 
for  snakeroot  and  Peruvian  bark  only,  the  defendants,  being 
druggists,  sent  him  in  return — say  by  mistake — &  compound 
made  up  of  the  drugs  required,  intermixed  with  a  most  pernicious 
and  deleterious  poison,  which,  in  fact,  bears  no  kind  of  resem- 
blance to  the  medicines  named  in  the  prescription,  and  the 
mingling  of  which  with  innocent  medicines,  sent  for  by  plaintiff, 
•was  caused  by  improperly  pulverizing  the  root  and  the  bark,  by 
grinding  them  in  the  same  mill  in  which  Spanish  flies  had  been 
previously  ground. 

Several  grounds  were  taken  for  a  new  trial,  which  do  not  con- 
cern us  here.  But  upon  the  question  of  excessive  damages, 
which  was  presented  as  a  reason  for  a  new  trial,  the  court  said : 

"%There  is  no  fixed  and  certain  criterion  of  damages  for  per- 
sonal injuries,  similar  to  those  sustained  by  the  plaintiff  in  this 
action.  The  question  as  to  their  amount  is  within  the  sound 
and  reasonable  discretion  of  the  jury.  The  damages  given  may 
be  more  or  less  exemplary,  or  otherwise,  as  the  circumstances 
of  aggravation  or  extenuation,  characterizing  each  particular 
case,  may  reasonably  require.  There  is  a  class  of  personal 
injuries,  such  as  slander,  libel,  malicious  prosecution,  and 
including  injuries  to  a  person's  health,  business  and  property, 
caused  by  indirect  means,  unattended  with  force,  and  for  redress 
of  which  the  remedy  is  by  an  action  upon  the  case,  and  not 
trespass,  for  which  a  jury  may  give  exemplary  damages,  as  well 
when  the  action  is  in  case  as  where  it  is  in  trespass ;  and  whether 
exemplary  damages  should  or  should  not  be  given,  does  not 
depend  upon  the  form  of  action,  so  much  as  upon  the  nature  and 
extent  of  the  injury  done,  and  the  manner  in  which  it  was  in- 
flicted, whether  by  negligence,  wantonness,  or  with  or  without 
malice.  In  the  present  case,  the  damages  given  by  the  jury, 


DRUGGISTS — ADJUDICATED    CASES.  191 

($1,141  75,)  can  not  be  considered  as  so  excessive  as  to  au- 
thorize this  court  to  reverse  the  judgment  on  that  ground.  From 
the  evidence  in  the  cause,  the  jury  had  the  opportunity  and  the 
right  to  decide  the  question  of  fact  as  to  the  extent  of  injury 
done  to  the  plaintiff's  health,  and  if  the  injury  was  considerable, 
protracted  or  permanent,  the  amount  of  damages  found  by  them 
was,  if  even  sufficient,  not  excessive,  and  the  verdict  and  judg- 
ment ought  not,  on  that  ground,  to  be  disturbed. 

But  it  is  urged  that  the  Circuit  Judge  improperly  instructed 
the  jury  upon  the  law  of  the  case.  Upon  motion  of  the  attorney 
for  the  plaintiff,  the  court  gave  the  following  instruction :  No.  1 . 
If  the  jury  believe,  from  the  evidence,  that  the  defendants, 
Fleet  &  Semple,  were  the  proprietors  of  the  drug  store,  in  the 
city  of  Covington,  at  which  the  prescription  alluded  to  in  evi- 
dence, made  for  the  plaintiff  by  Dr.  Whitehouse,  was  compounded, 
and  that  said  prescription,  as  put  up  at  said  drug  store,  contained 
Spanish  flies,  or  cantharides,  and  that  the  plaintiff,  in  consequence 
of  taking  a  part  of  it,  was  made  sick  or  injured  thereby,  they 
ought  to  find  for  the  plaintiff,  even  although  they  may  believe 
that  defendants  were  ignorant  of  the  fact  that  said  prescription 
did  contain  said  ingredient.  Although  the  words  of  the  instruc- 
tion are  injudiciously  selected  and  arranged,  yet  if  its  meaning  is 
not  misapprehended,  it  embraces  in  its  terms  a  proposition  of  law 
pertinent  to  the  case,  and  applicable  to  the  facts  presented  to  the 
jury  by  the  evidence.  Of  course,  the  attorney  who  wrote  the 
instruction,  and  the  Judge  who  gave  it,  in  using  the  expression 
as  to  the  "  prescription  containing  Spanish  flies,"  and  as  to  the 
plaintiff's  having  taken  a  portion  of  the  prescription,  etc.,  have 
reference  to  the  mixture  compounded  at  the  drug  store,  and  not 
to  the  written  prescription  of  the  physician,  intended  as  a  direc- 
tion to  the  druggist  as  to  the  drugs  to  be  compounded.  If  the 
plaintiff  sent  a  prescription  to  the  defendants'  drug  store,  in  filling 
such  prescription,  whether  ignorantly  or  by  design — whether  with 
or  without  the  knowledge  of  the  defendants,  they  being  propri- 
etors, did  intermix  the  poisonous  drug  cantharides,  or  Spanish 


192  MALPRACTICE. 

flies,  with  the  bark  and  simkeroot ;  and  if,  in  taking  this  prepara- 
tion, or  mixture,  as  medicine,  the  plaintiff  was  injured,  the 
defendants,  being  owners  of  the  drug  store,  are  legally  responsible 
in  damages  to  the  plaintiff'  for  the  accident,  if  it  was  one,  and  for 
the  outrage,  if  it  was  designed. 

Now,  if  a  man  who  sells  fruits,  wines  and  provisions,  is  bound, 
at  his  peril,  that  what  he  sells  for  the  consumption  of  others  shall 
be  good  and  wholesome,  it  may  be  asked,  emphatically,  is  there 
any  sound  reason  why  this  conservative  principle  of  law  should 
not  apply  with  equal,  if  not  with  greater,  force  to  venders 
of  drugs  from  a  drug  store,  containing,  as  from  usage  may 
be  presumed,  a  great  variety  of  vegetable  and  mineral  substances 
of  poisonous  properties,  which,  if  taken  as  medicines,  will  destroy 
health  and  life,  and  the  appearances  of  which  are  known  to  but 
few,  except  they  be  chemists,  druggists  or  physicians.  The  pur- 
chasers of  wines  and  provisions,  by  sight,  smell  and  taste,  may 
be  able,  without  incurring  any  material  injury,  to  detect  their  bad 
and  unwholesome  qualities;  but  many  are  wholly  unable,  by  the 
taste  or  appearance  of  many  drugs,  to  distinguish  those  which 
are  poisonous  from  others  which  are  innoxious,  so  close  is  their 
resemblance  to  each  other.  Purchasers  have,  therefore,  to  trust 
the  druggist.  It  is  upon  his  skill  and  prudence  they  must  rely. 
It  is,  therefore,  incumbent  upon  him  that  he  understands  his  bus- 
iness. It  is  hi&N  duty  to  know  the  properties  of  his  drugs,  and  to 
be  able  to  distinguish  them  from  each  other.  It  is  his  duty  so  to 
qualify  himself,  or  to  employ  those  that  are  so  qualified,  to  attend 
to  the  business  of  compounding  and  vending  medicines  and  drugs, 
as  that  one  drug  may  not  be  sold  for  another,  and  so  that,  when 
a  prescription  is  presented  to  be  made  up,  the  proper  medicine, 
and  none  other,  be  used  in  mixing  and  compounding  it.  As 
applicable  to  the  owners  of  drug  stores,  or  persons  engaged  in 
vending  drugs  and  medicines  by  retail,  the  legal  maxim  should 
be  reversed.  Instead  of  caveat  emptor,  it  should  be  caveat  ven- 
dor. That  is  to  say,  let  him  be  certain  that  he  does  not  sell  to  a 
purchaser  or  send  to  a  patient  one  thing  for  another,  as  arsenic 


DRUGGISTS ADJUDICATED    CASES.  193 

for  calomel,  cantharides  for  or  mixed  with  snakeroot  and  Peruvian 
bark,  or  even  one  innocent  drug,  calculated  to  produce  a  certain 
effect,  in  place  of  another,  sent  for  and  designed  to  produce  a 
different  effect.  If  he  does  these  things,  he  can  not  escape  civil 
responsibility,  upon  the  alleged  pretext  that  it  was  an  accidental 
or  an  innocent  mistake ;  that  he  had  been  very  careful  and  par- 
ticular, and  had  used  extraordinary  care  and  diligence  in  pre- 
paring and  compounding  the  medicines,  as  required,  etc.  Such 
excuses  will  not  avail  him,  and  he  will  be  liable,  at  the  suit  of  the 
party  injured,  for  damages,  at  the  discretion  of  the  jury. 

The  defendants'  attorney  moved  the  court  to  instruct  the  jury 
as  follows:  1.  If,  from  the  evidence,  the  jury  believe  that  the 
defendants,  in  preparing  the  prescription,  used  due  and  reason- 
able skill,  care  and  diligence,  they  must  find  for  the  defendants. 
2.  If,  from  the  evidence,  the  jury  believe  that  the  defendants,  in 
putting  up  the  prescription,  used  extraordinary  or  unusual  care, 
they  must  find  for  the  defendants. 

These  instructions  were  not  given,  but  properly  refused  by  the 
court.  The  rule  as  to  the  degree  of  care  and  diligence  necessary 
to  be  used  in  certain  cases  to  exempt  a  party  from  liability,  and 
as  to  the  extent  or  degree  of  negligence  necessary  to  devolve 
civil  responsibility  upon  the  party  guilty  thereof,  do  not  apply  to 
the  present  and  similar  cases.  It  is  absurd  to  speak  of  degrees 
of  diligence  and  of  negligence,  as  excusing  or  not  excusing,  or  as 
settling  the  question  of  liability  or  no  liability,  in  a  case  where 
the  vender  of  drugs,  being  required  to  compound  innocent  med- 
icines, runs  them  through  a  mill  in  which  he  knew  a  poisonous 
drug  had  shortly  before  been  ground.  If  a  mistake  or  accident 
could  excuse  the  sending  of  a  medicine  different  from  that  applied 
for,  which  we  do  not  admit,  and  can  not  readily  conceive,  there 
could  have  been  neither  mistake  nor  accident  in  this  case,  because 
the  fact  of  the  previous  use  of  the  mill  was  known  to  the  ven- 
ders, and  they  are  absolutely  responsible  for  consequences  which 
that  knowledge  enabled  them  and  made  it  their  duty  to  avoid. 
Even  accidents  or  mistakes  should  not  occur  in  a  business  of  this 
13 


194  MALPRACTICE. 

nature,  and  they  can  not,  ordinarily,  occur  without  there  has 
been  such  a  degree  of  culpable,  if  not  wanton  and  criminal,  care- 
lessness and  neglect,  as  must  devolve  upon  the  party  unavoidable 
and  commensurate  responsibility.  We  were  asked,  by  the  attor- 
neys, in  their  arguments,  with  some  emphasis,  if  druggists  are  to 
be,  in  legal  estimation,  regarded  as 'insurers?'  The  answer  is, 
that  we  see  no  good  reason  why  a  vender  of  drugs  should,  in  his 
business,  be  entitled  to  a  relaxation  of  the  rule  which  applies  to 
venders  of  provisions — which  is,  that  the  vender  undertakes  and 
insures  that  the  article  is  wholesome.  Sound  public  policy,  in 
relation  to  the  preservation  of  health,  and  even  of  life,  would 
seem  to  require  that  this  rule  should  have  a  rigid  and  inflexible 
application  to  cases  similar  to  the  one  under  consideration.  As 
the  responsibility  of  the  defendants  in  this  case  does  not  depend 
upon  the  degree  of  care,  or  diligence,  or  negligence  used  by  them, 
but  upon  the  naked  fact,  that  when  requested  to  compound  a  med- 
icine for  plaintiff,  to  be  composed  alone  of  snakeroot  and  Peru- 
vian bark,  the  preparation  sent  to  the  plaintiff  contained  also  the 
poisonous  drug  cantharides,  which  had  been  recently  ground  in 
the  same  mill,  the  taking  of  which  caused  him  great  pain,  suffering 
and  sickness,  if  it  has  not  permanently  injured  his  health.  The 
instructions  asked  for  by  the  defendants  were  properly  refused." 

The  judgment  of  the  Circuit  Court  was  affirmed. 

The  two  cases  we  have  given — that  of  Thomas  and  wife  against 
Winchester,  and  that  of  Fleat  &  Semple  against  Hollenkemp — 
settle  the  law  as  applied  to  chemists  and  druggists,  when  they 
undertake  to  compound  or  sell  those  medicines,  where  a  mistake 
or  a  little  carelessness  may  endanger  life  and  health. 

In  New  York  City,  the  business  of  the  apothecary  is  regulated 
by  statute,  as  follows :  The  35th,  36th  and  37th  sections  of  the 
General  Regulations  concerning  the  Practice  of  Physic  and  Sur- 
gery is, "  That  no  person  shall  be  hereafter  allowed  to  commence 
or  practice,  in  the  city  of  New  York,  the  business  of  an  apothecary, 
or  that  of  preparing  and  dispensing  medicine,  or  of  preparing  or 
putting  up  physician's  prescriptions,  without  having  previously 


DRUGGISTS TRADE   MARKS.  195 

obtained  the  diploma  of  the  College  of  Pharmacy,  of  the  city  of 
New  York,  or  unless  furnished  with  a  diploma  from  some  other 
regularly-constituted  college  of  pharmacy  or  medicine,  or  shall 
have  passed  an  examination  of  the  censors  of  the  medical  society 
of  one  of  the  counties  of  this  State,  and  have  been  furnished  by 
such  censors  with  a  certificate  of  his  qualifications  for  the  busi- 
ness of  an  apothecary,  which  diploma  or  certificate  he  shall  pro- 
duce to  the  Secretary  of  the  said  College  of  Pharmacy,  to  be  by 
him  registered,  without  charge. 

Sec.  36.  Any  person  offending  against  the  provisions  of  this 
kw  shall  be  subject  to  a  penalty  of  fifty-one  dollars  for  each  and 
every  offense,  which  may  be  recovered,  with  costs,  in  the  name 
of  the  people  of  the  State  of  New  York,  in  any  civil  court  of 
record ;  and  the  said  fines,  when  collected,  after  deducting  such 
reasonable  counsel  fees  as  the  court  shall  allow,  shall  be  paid  by 
the  District  Attorney  to  the  Treasurer  of  the  New  York  City 
Dispensatory,  for  the  use  of  said  Dispensatory. 

Sec.  37.  This  law  shall  not  apply  to  persons  who  now  carry 
on  said  business,  nor  the  preparation  and  dispensing  of  medicines 
by  licensed  physicians." 

It  is  a  misdemeanor,  in  the  State  of  New  York,  for  an  apoth- 
ecary, druggist  or  other  person,  who  shall  sell  and  deliver  any 
arsenic,  corrosive  sublimate,  prussic  acid,  or  any  other  substance 
or  liquid  usually  denominated  poisonous,  without  having  the 
word  "  poison  "  written  or  printed  upon  a  label  attached  to  the 
phial,  box  or  parcel,  in  which  the  same  is  so  sold ;  or  who  should 
sell  and  deliver  any  tartar  emetic,  without  having  the  true  name 
thereof  written  or  printed  upon  a  label  attached  to  the  phial,  box 
or  parcel  containing  the  same,  and  shall  be  punished  by  a  fine 
not  exceeding  one  hundred  dollars. 

There  is  no  business  requiring  more  careful  and  constant  watch- 
fulness than  that  of  the  druggist.  He  can  not,  therefore,  be  too 
systematic  and  regular  in  carrying  it  on.  Upon  him  the  physician 
depends  for  the  preparation  of  his  prescriptions,  and  consequently, 
without  his  careful  co-operation,  not  only  failure  to  cure  the  dis- 
ease, but  actual  injury  from  the  medicine  itself,  may  be  the  result 


196  MALPRACTICE. 

TRADE  MARKS— NAME  OF  A  COMPOUND. 
DAVIS  v.  KENDALL;  2  Duifee's  (R.  I.)  Rep.  566. 

This  was  an  action  against  the  defendant  for  pirating  the  plain- 
tiff's trade  mark.  It  appeared  that  the  plaintiff  was  the  original 
inventor  of  a  compound  sold  by  him,  by  the  name  of  "Pain- 
killer ;"  that  he  had  been  the  first  to  apply  this  word  to  such  a 
compound,  and  that  after  said  compound  had  become  extensively 
and  favorably  known,  the  defendant  manufactured  and  sold  a 
irnilar  compound,  by  the  name  of  "  J.  A.  Perry's  Vegetable  Pain- 
killer." The  defendant's  medicine  was  put  in  bottles  of  similar 
size  with  those  of  the  plaintiff,  though  of  somewhat  different 
shape.  The  plaintiff's  label  was  a  paper  pasted  on  the  body  of 
the  bottle,  on  the  upper  part  of  which  was  the  word  ''Pain-killer," 
printed  in  a  scroll,  below  which  were  the  words  u  Manufactured  by 
Perry  Davis,"  and  below  this  an  engraving,  intended  to  represent 
the  plaintiff,  surrounded  by  an  oval  circle  bounded  on  either  side 
by  a  simple  wreath,  and  having  in  its  margin  the  words,  "  The 
original  inventor,  No.  74  High  st.,  Providence."  Below  the  cir- 
cle, in  small  type,  were  the  words,  "  Copyright  secured,"  and  the 
price  of  the  bottle,  and  at  the  bottom  of  the  label  the  words, 
"  Destroy  this  as  soon  as  the  bottle  is  empty.  This  will  prevent 
fraud/'  The  defendant's  label  was  similarly  affixed  to  the  bottle ; 
at  the  upper  part  were  the  words,  "  J.  A.  Perry's  Vegetable  Pain- 
killer;" underneath  which  was  represented  the  bust  of  a  man, 
and  beneath  this  the  words,  "  Manufactured  in  Providence,  R.  I. 
Price  80  cents.  Copyright  secured."  The  devices  on  the  plain- 
tiff's labels  were  on  a  light  ground ;  those  upon  the  defendant's 
upon  a  dark  ground.  The  case  was  tried  to  the  court  upon  an 
agreed  statement  of  facts. 

GREENE,  Ch.  J. — The  plaintiff  has  no  patent  and  no  exclusive 
right  to  the  compound  called  "Pain-killer."  He  invented  the 
compound  and  gave  it  the  name  of  "  Pain-killer,"  and  this  seems 
to  have  been  the  first  application  of  that  term  to  a  medical  com- 
pound. The  plaintiff,  though  not  entitled  to  the  compound,  is 


DRUGGISTS TRADE   MARKS.  197 

entitled  to  his  trade  mark,  and  the  law  recognizes  and  will  protect 
this  right. 

Trade  marks  may  be,  first,  the  name  of  the  maker ;  second, 
symbolical;  third,  the  name  of  the  compound.  Of  this  last  kind 
is  the  trade  mark  of  the  pi  nntiff,  "  Pain-killer." 

All  are  entitled  to  make  and  vend  this  compound,  and  to  vend 
it  as  a  similar  article  to  that  made  and  sold  by  the  plaintiff';  but 
no  one  but  the  plaintiff  has  a  right  to  sell  it  as  a  medicine  man- 
ufactured by  the  plaintiff.  The  adoption  of  the  same  label  as  the 
plaintiff's  will,  of  course,  be  actionable ;  and  so  the  adoption  of  a 
label  so  like  the  plaintiff's  as  to  mislead  the  public,  would  be 
actionable.  If  the  difference  be  merely  colorable,  it  will  not  avail 
the  defendant.  But  if  the  defendant  state  in  his  label,  that  the 
article  which  he  sells  was  made  by  himself,  although  he  calls  it  by 
the  same  name  as  the  plaintiflj  he  will  not  be  liable ;  because  he 
has  a  right  to  make  and  vend  the  compound,  if  he  vends  it  as 
his  own,  and  not  as  made  by  the  plaintiff.1  If  the  defendant, 
without  fraud,  use  the  trade  mark  of  the  plaintiff,  he  is  still  liable. 
If  the  right  be  violated,  it  matters  not  whether  it  be  by  fraud  or 
by  mistake.2 

The  whole  question  in  this  case  is,  whether  the  defendant's 
label  is  liable  to  deceive  the  public,  and  to  lead  them  to  suppose 
they  are  purchasing  an  article  manufactured  by  the  plaintiff  in- 
stead of  the  defendant.  The  agreed  statement  of  facts  does  not 
find  that  the  defendant's  label  has  deceived  any  one.  and  I  do  not 
think  it  will  do  so,  but  my  associates  think  otherwise,  and  judg- 
ment mu.st,  therefore,  be  returned  for  the  plaintiff. 


1  Canham  v.  Jones,  2  Vcssey  &  Beanies,  218. 
*  Millingtou  v.  Fox,  3  Mylne  &  Craig,  339. 


CHAPTER  XIII. 

CRIMINAL  MALPRACTICE— ENGLISH  ADJUDICATED  CASES. 

WILLFUL  or  Criminal  Malpractice  depends  upon  the  intent,  or 
upon  rashness,  or  want  of  dm  circumspection.  Under  these  cir- 
stances,  the  law  will  imply  criminal  intent. 

There  is,  perhaps,  no  subject  connected  with  criminal  jurispru- 
dence, in  which  cases  of  so  great  difficulty  have  arisen  in  regard 
to  the  question  of  malice,  as  those  that  have  occurred  under  the 
head  of  Criminal  Malpractice  by  surgeons.  It  arises  from  the 
peculiar  circumstances  surrounding  the  whole  practice  of  med- 
icine, to  which  we  have  heretofore  referred. 

Where  many  questions  and  a  multitude  of  elements  enter  into 
judicial  decisions,  there  have  always  been  a  proportional  contra- 
diction and  fluctuation  in  such  decisions.  The  law  books  are  full 
of  facts  that  establish  the  truth,  that  a  settlement  of  a  principle, 
under  these  circumstances,  is  only  arrived  at  after  long  years  of 
conflicting  rulings. 

None  of  the  authorities  pretend  to  go  further  back  than  to 
the  fifteenth  century.  Beyond  this  time,  all  is  confusion  in  the 
Common  law  on  the  subject  of  Malpractice ;  and  in  the  Civil  law 
there  is  nothing  relative  to  it  more  definite. 

One  of  the  oldest,  if  not  the  oldest  decision,  relating  to  Mal- 
practice, is  by  the  distinguished  Sir  Matthew  Hale,  who  lived 
at  the  time  of  Charles  I.  He  thus  lays  down  the  law  of  his 
time,  relating  to  Criminal  Malpractice,  which  opinion  is  quoted  as 
authority  in  all  succeeding  decisions  on  the  subject:  "  If  a  phys- 
ician gives  a  person  a  potion  without  any  intent  of  doing  him 


CRIMINAL   MALPRACTICE.  199 

any  bodily  harm,  but  with  intent  to  cure  or  prevent  a  disease, 
but,  contrary  to  the  expectation  of  the  physician,  it  kills  him, 
this  is  no  homicide,  and  the  like  of  a  surgeon ;  and  I  hold  their 
opinion  to  be  erroneous  that  think  if  it  be  no  licensed  surgeon 
or  physician  that  occasions  the  mischance,  then  it  is  felony,  for 
that  he  be  not  licensed  according  to  the  statutes.  They  are  sub- 
ject to  the  penalties  in  the  statutes,  but  God  forbid  that  any  mis- 
chance of  this  kind  should  make  any  person  not  licensed  guilty 
of  murder  or  manslaughter."1 

Lord  Hale  referred,  without  doubt,  to  Lord  Coke,  who  held,  or 
seemed  to,  that  if  the  operator  or  practitioner  was  unlicensed,  he 
would  be  liable  where  a  licensed  one  would  not  be.  Coke  says :  "  If 
one  that  is  in  the  mystery  of  a  physician,  take  a  man  to  cure,  and 
give  him  such  physic  as  within  three  days  he  die  thereof,  without 
any  felonious  intent,  and  against  his  will,  it  is  no  homicide,  but  Brit- 
ton  saith,  that  if  one  that  is  not  of  the  mystery  of  a  physician  or 
chirurgeon  take  upon  him  the  cure  of  a  man,  and  he  dieth  of  the 
potion  or  medicine,  this  is,  saith  he,  covert  felony."2 

Though  this  doctrine  was  thus  put  forth  by  Lord  Coke,  yet  it 
is  said,  by  good  authority,  that  there  never  had  then  been,  nor 
has  there  been  since,  any  decision  of  the  kind  attributed  to 
Britton.3 

Blackstone,  following  Hale,  lays  down  the  law  as  it  existed  in 
his  time,  to  be,  "  If  a  physician  or  surgeon  gives  his  patient  a 
potion  or  plaster  to  cure  him,  which,  contrary  to  his  expectation, 
kills  him,  this  is  neither  murder  or  manslaughter,  but  a  misad- 
venture, and  he  should  not  be  punished  criminally,  however  liable 
he  might  formerly  have  been  to  a  civil  action  for  neglect  or 
ignorance ;  but  it  hath  been  holden,  that  if  it  be  not  a  regular 
physician  or  surgeon  who  administered  the  medicine  or  performs 
the  operation,  it  is  manslaughter  at  the  least;  yet  Sir  Matthew 


1  1  Hale  P.  C.  429. 

24Inst.  251. 

•  3  C.  &  P.  629,  [Hullock,  B.] 


200  MALPRACTICE. 

Hale  very  justly  questions  the  l.iw  of  this  determination.  In 
order,  also,  to  make  the  killing  murder,  it  is  requisite  that  the 
party  die  within  a  year  and  a  day  after  the  stroke  received,  or 
cause  of  death  administered,  in  the  computation  of  which  the 
whole  day  upon  which  the  hurt  was  done  is  to  be  computed 
the  first."1 

Thus,  these  high  authorities  seem  to  agree  that  the  want  of  a 
license,  or  medical  degree,  does  not  enhance  the  grade  of  offense 
if  there  was  an  honest  desire  to  cure  the  patient. 

On  the  contrary,  in  the  case  of  Rex  v.  Simpson,  the  prisoner 
being  indicted  for  manslaughter,  it  appeared  that  the  deceased,  a 
sailor,  had  been  discharged  from  the  Liverpool  Infirm  iry  as 
cured,  after  undergoing  salivation,  and  that  he  was  recommended 
by  another  patient  to  go  to  the  prisoner  for  an  emetic, "  to  get  the 
mercury  out  of  his  bones."  The  prisoner  was  an  old  woman,  who 
resided  at  Liverpool,  and  occasionally  dealt  in  medicine.  She 
gave  the  deceased  a  dose  of  the  solution  of  corrosive  sublimate, 
which  caused  his  death.  The  woman  said  she  had  received  the 
mixture  from  a  person  who  came  from  Ireland,  and  had  gone 
back  again.  Mr.  Justice  Bayley  said,  in  that  case,  "  I  .take  it  to 
be  quite  clear,  that  if  a  person,  not  of  medical  education,  in  a 
case  where  medical  aid  could  be  obtained,  undertakes  to  adminis- 
ter medicine,  which  may  have  a  dangerous  effect,  and  thereby 
causes  death,  such  person  is  guilty  of  manslaughter.  He  may 
have  no  evil  intention,  and  may  have  a  good  one,  but  he  has  no 
right  to  hazard  the  consequences,  in  a  case  where  medical  assist- 
ance may  be  obtained.  If  he  does,  it  is  at  his  peril.  It  is  im- 
material whether  the  person  administering  the  medicine  prepares 
it  himselfj  or  gets  it  of  another."2 

This  reasoning  is  correct,  and  should  be  deemed  conclusive. 
Where  good,  intelligent  medical  or  surgical  assistance  can  be  ob- 
tained, an  empiric  or  ignorant  person  who  attempts  to  use  the 


*  4  Black.  Com.  197. 
2  4  C.  &  P.  398,  noto. 


CRIMINAL   MALPRACTICE.  201 

potent  agents  of  the  Materia  Medico,  thus  recklessly  on  human 
life,  should  be  held  to  a  strict  accountability  to  our  criminal  laws. 
But  the  weight  of  authority  is,  perhaps,  with  Sir  M.  Hale  and  Sir 
Wiliiam  Blackstone,  on  the  principle,  that  all  regular  and  irregular 
practitioners  are  to  be  placed  on  about  the  same  footing  as  to 
criminal  liability,  where  no  statute  intervenes.  This  is  the  doc- 

%/  * 

trine  upon  which  the  case  of  Van  Butchell  was  decided,  before 
Baron  Hullock,  Mr.  Justice  Littledale  and  Mr.  Sargeant  Arabin, 

tried  in  1829,  at  the  Old  Bailey  Sessions. 

> 

REX  v,  VAN  BUTCHELL;  7  B.  A  C.  493. 

This  is  a  leading  case,  and  worthy  of  study. 

The  indictment  charged  the  death  to  be  by  "the  thrusting  of 
-Q.  round  piece  of  ivory  into  and  up  the  fundament,  and  against  the 
rectum  of  the  deceased,  William  Archer,  thereby  making  one 
perforation,  laceration  and  wound  of  the  length,"  etc.,  "in  and 
through  the  said  rectum  of  the  said  Archer." 

Adolphus,  for  the  prosecution,  stated  that  the  deceased  had 
labored  under  a  disease  of  the  rectum,  respecting  which  he  went 
to  Mr.  Van  Butchell,  on  the  10th  of  May,  1829,  when  Mr.  Vao 
Butchell  passed  an  instrument  into  his  body,  giving  him  pain, 
and  that  on  the  deceased  returning  home  he  took  to  his  bed,  from 
which  he  never  rose,  having  died  on  the  17th  of  May.  He  then 
took  the  ground  that  the  defendant  was  guilty  of  manslaughter, 
and  read  as  authority  an  extract  from  Blackstone's  Commentaries, 
and  was  proceeding  to  state  what  Coke  had  said  in  his  Institutes, 
which  extract  we  have  already  quoted,  that  if  one  who  is  not  a 
regular  surgeon  take  upon  him  to  cure  a  man,  and  the  patient 
die,  it  is  felony. 

HULLOCK,  B.,  said :  "  It  is  said  in  Lord  Coke's  Institutes,  un- 
doubtedly, but  there  has  never  been  any  decision  of  the  kind." 

For  the  defense,  it  was  said :  "  The  gentleman  now  standing  at 
the  bar  is,  as  I  happen  to  know,  the  son  of  a  person  of  great 
experience,  and  he  has  himself  had  much  practice  for  a  great 
many  years,  which  I  think  you  shall  take  as  raising  the  presump- 


202  MALPRACTICE. 

tion  that  he  has  had  a  regular  education;  indeed,  I  have  been 
told  that  Mr.  Van  Butchell  is  a  regularly-educated  surgeon. 
Whether  he  is  a  member  of  the  College  of  Surgeons  1  know  not; 
and  I  believe  you  will  be  told  by  the  court  that  that  is  not  essen- 
tial ;  and  I  think  you  will  also  be  told  by  the  court  that  we  must 
not  scrutinize  too  nicely  as  to  how  the  operation  was  performed, 
if  it  was  not  performed  with  such  gross  ignorance  as  to  show  a 
wanton  carelessness  of  human  life. 

It  was  then  proved  by  Lloyd  that  he  opened  the  body  of  the 
deceased  after  death,  and  that  he  found  a  portion  of  the  illeum 
adherent  to  the  rectum,  and  that  on  separating  this  adhesion  he 
discovered  a  small  hole  perforated  through  the  rectum.  Mr. 
Lloyd  was  cross-examined,  with  a  view  of  showing  that  those 
appearances  might  have  been  the  result  of  natural  causes,  and  he 
stated  that  operations  would  sometimes  fail,  notwithstanding  they 
might  be  most  skillfully  performed;  and  he  added,  that  he  him- 
self had  operated  in  extracting  an  encysted  tumor  from  the  breast 
of  a  woman,  at  a  time  when  she  was  pregnant,  and  who  soon  after 
died ;  and  that  he  and  many  other  surgeons  thought  that  correct 
practice,  though  he  admitted  the  propriety  of  the  practice  was 
doubted  by  others. 

HULLOCK,  B.,  inquired  of  Adolphus  if  he  thought  he  could 
carry  the  case  further  ? 

Adolphus  said  he  did  not  think  that  he  could. 

HULLOCK,  B. — I  am  free  to  confess  that  this  does  not  even  ap- 
proach to  a  case  of  manslaughter.  It  would  be  dreadful,  if  every 
time  an  operation  was  performed,  an  individual  was  liable  to  have 
his  practice  questioned. 

BrodericJc,  for  the  defense — I  am  prepared  to  show  that  Van 
Butchell  has  a  regular,  medical  education. 

HULLOCK,  B. — /  do  not  think  that  that  is  material  to  the  case. 

BrodericJc. — I  can  call  a  great  number  of  patients  whose  cases 
have  been  successfully  treated  by  Mr.  Van  Butchell. 

HULLOCK,  in  summing  up,  said :  'k  This  is  an  indictment  for 
manslaughter,  and  I  am  really  afraid  to  let  the  case  go,  lest  ai> 


CRIMINAL    MALPRACTICE.  203 

idea  should  be  entertained  that  a  man's  practice  may  be  ques- 
tioned whenever  an  operation  fails.  In  this  case  there  is  no 
evidence  of  the  mode  in  which  the  operation  was  performed ;  and 
even  assuming,  for  the  moment,  that  it  caused  the  deafh  of  the 
deceased,  I  am  not  aware  of  any  law  which  ?ays  that  this  party 
can  be  found  guilty  of  manslaughter.  It  is  my  opinion  that  it 
makes  no  difference  whether  the  party  is  a  regular  or  an  irregular 
surgeon;  indeed,  in  remote  parts  of  the  country,  many  persons 
would  be  left  to  die,  if  irregular  surgeons  were  not  allowed  to 
practice.  There  is  no  doubt  that  there  may  be  cases  where  both 
regular  and  irregular  surgeons  might  be  liable  to  an  indictment, 
as  there  might  be  cases  where,  from  the  manner  of  the  opera- 
tion, even  malice  might  be  inferred.  All  that  the  law  books  have 
said  h  is  been  read  to  you ;  but  they  do  not  state  any  decision, 
and  their  silence  in  that  respect  goes  to  show  what  the  uniform 
opinion  of  lawyers  has  been  upon  this  subject.  As  to  what  is 
said  by  Lord  Coke,  he  merely  details  an  authority — a  very  old 
one — without  expressing  either  approbation  or  disapprobation. 
However,  we  find  that  Lord  Hale  has  laid  down  what  is  the  law 
on  the  subject:  that  is  copied  by  Mr.  Justice  Blackstone, 
and  no  law  book  goes  any  further.  It  may  be  that  a  person 
not  qualified  legally  to  practice  as  a  surgeon,  may  be  liable 
to  penalties ;  but  surely  he  can  not  be  liable  to  an  indictment  for 
felony. 

It  is  quite  clear  you  may  recover  damages  against  a  medical 
man  for  want  of  skill ;  but,  as  Lord  Hale  says,  "  God  forbid  that 
any  mischance  of  this  kind  should  make  a  person  guilty  of  mur- 
der or  manslaughter."  Such  is  the  opinion  of  one  of  the  greatest 
judges  that  ever  adorned  the  bench  of  this  country ;  and  his 
proposition  amounts  to  this,  that  if  a  person  bona  fide  and  hon- 
estly exercising  his  best  skill  to  cure  a  patient,  performs  an 
operation  which  causes  the  patient's  death,  he  is  not  guilty  of 
manslaughter.  In  the  present  case  no  evidence  has  been  given 
respecting  the  operation  itself!  It  might  have  been  performed 
with  the  most  proper  instrument,  in  the  most  proper  manner,  and 


204  MALPRACTICE. 

yet  might  have  failed.  Mr.  Lloyd  has  himself  told  us  that  he 
performed  an  operation,  the  propriety  of  which  seems  to  have 
been  a  sort  of  vcxata  qncestio  among  the  medical  profession ;  but 
still  it  would  be  most  dangerous  for  it  to  get  abroad,  that  if  an 
operation,  performed  either  by  licensed  or  unlicensed  surgeons, 
should  fail,  that  the  surgeon  would  be  liable  to  a  prosecution  for 
manslaughter.  I  think,  in  a  point  of  law,  this  prosecution  can 
not  be  sustained ;  and  I  feel  bound  to  say,  that  no  imputation, 
whatever,  ought  to  be  cast  upon  the  gentleman  who  is  now  at  the 
bar,  in  consequence  of  any  thing  that  has  occurred. 

Lord  Ellenborough  lays  down  the  same  doctrine  in  the  William- 
son case. 

REX  v.  WILLIAMSON;   7  B.  &  C.  497. 

In  this  case  the  prisoner  was  indicted  for  the  murder  of  Ann 
Delacroix,  at  the  parish  of  St.  Jarnes,  Westminster.  He  was 
also  charged  with  manslaughter  by  the  coroner's  inquisition. 

The  physician  thus  charged  was  about  seventy-five  years  of 
age.  He  was  not  a  regularly-educated  accoucheur,  but  was  a 
person  who  had  been  in  the  habit  of  acting  in  that  capacity  among 
the  lower  classes  of  people. 

One  of  the  witnesses  testified,  (the  nurse  who  waited  upon 
Mrs.  Delacroix,)  that  Mrs.  D.  had  been  delivered  by  the  prisoner 
of  a  male  child  on  Friday,  the  17th  of  September,  and  that  on 
the  Sunday  following  an  unusual  appearance  took  place,  which 
the  medical  witnesses  stated  to  be  a  prolapsus  uteri.  This  the 
prisoner  mistook  for  a  remaining  part  of  the  placenta,  which  had 
not  been  brought  away  at  the  time  of  the  delivery.  lie  attempted 
to  bring  away  the  prolapsed  uterus  by  force,  and  in  so  doing  he 
lacerated  the  uterus,  and  tore  asunder  the  mesenteric  artery. 
This,  of  course,  caused  the  death  of  the  patient.  Had  he  not 
gone  quite  so  far,  and  only  strained  and  slightly  ruptured  the 
parts  connected  with  the  uterus,  the  case  would  have  been  one  of 
living  death.  This  condition,  thus  brought  on,  is  not  uncommon, 
and  the  poor  woman  lingers  out  a  miserable  and  painful  exist- 
ence. The  medical  evidence  went  to  establish  the  fact  that  there 


CRIMINAL   MALPRACTICE.  '205 

must  have  been  a  great  want  of  anatomical  knowledge  in  the 
prisoner. 

On  the  other  hand,  fourteen  women  appeared  as  witnesses  for 
the  defense,  all  of  whom  had  been  delivered  by  the  prisoner  at 
different  times:  but  six  only  were  examined;  and  they  spoke 
of  the  kindness  and  attention  that  the  prisoner  had  displayed, 
and  also  of  his  skill,  so  far  as  they  could  judge. 

Lord  ELLKNBOROUGH,  Ch.  J.,  in  summing  up,  said  to  the  jury : 
"  There  has  not  been  a  particle  of  evidence  adduced  which  goes 
to  convict  the  prisoner  of  the  crime  of  murder ;  but  still  it  is 
for  you  to  say  whether  the  evidence  goes  so  far  as  to  make  out 
a  case  of  manslaughter.  To  substantiate  that  charge,  the  prisoner 
must  have  been  guilty  of  criminal  misconduct,  either  arising 
from  the  grossest  ignorance  or  the  most  criminal  inattention. 
One  or  other  of  these  is  necessary  to  make  him  guilty  of  that 
criminal  negligence  and  misconduct  which  is  essential  to  make 
out  a  case  of  manslaughter.  It  does  not  appear  in  this  case 
that  there  was  any  want  of  attention  on  his  part,  and  from  the 
evidence  of  the  witnesses  on  his  behalf,  it  appears  that  he  had 
delivered  many  women  at  different  times, — and  from  this  he 
must  have  had  some  degree  of  skill.  It  would  seem  that,  having 
placed  himself  in  a  dangerous  situation,  he  became  shocked  and 
confused.  I  think  that  he  could  not  possibly  have  committed 
such  mistake  in  the  exercise  of  his  unclouded  faculties ;  and  I 
own  that  it  appears  to  me  that  if  you  find  the  prisoner  guilty 
of  manslaughter,  it  will  tend  to  encompass  a  most  important  and 
anxious  profession  with  such  dangers  as  would  deter  reflecting 
men  from  entering  into  it." 

Verdict — not  guilty ! 

This  important  case,  thus  analyzed  by  the  distinguised  judge 
who  presided  at  the  trial,  shows  how  difficult  it  always  has  been 
to  convict  a  medical  man  of  murder  or  manslaughter  when  he 
has  caused  death  in  the  course  of  his  profession.  This,  perhaps, 
is  right;  that  the  innocent  may  not  unjustly  sutler  from  an 
unhealthy  public  or  judicial  influence.  Yet  there  ought  to  bo 


206  MALPRACTICE. 

no  hesitation  in  punishing  an  outrageous  transaction  like  the  one 
detailed  in  the  above  case,  with  the  heaviest  penalties  of  the  law.1 
The  proper  protection  of  the  public  requires  it — the  reputation 
of  the  medical  profession  calls  for  and  demands  it  as  a  vindi- 
cation of  its  science,  and  of  legitimate,  intelligent  practice. 

While  the  caution  of  Lord  Ellenborough  is  commendable,  yet 
in  this  case  he  has  been  carried  too  far.  Nor  is  his  reasoning 
correct.  It  is  no  more  an  inference  of  "  some  degree  of  skill" 
in  Williamson,  because  he  had  delivered  some  women  successfully 
before,  than  the  fact  that  a  woman  who  has  delivered  herself  of 
ten  or  a  dozen  children,  which  is  often  the  case,  is  evidence  that 
she  possesses  some  knowledge  of  the  uterine  system.  Nine- 
tenths,  perhaps,  of  the  obstetric  cases  require  no  medical  aid 
whatever ;  when  it  is  required,  however,  it  is  so  immediate  and 
necessary,  that  it  is  unsafe  to  be  without  this  aid  at  hand  at  any 
time.  When  needed  at  all,  the  best  skill  is  called  for.  Nor  is 
it  a  very  good  excuse,  or  one  that  should  have  but  little  weight, 
that "  he  became  shocked  and  confused,"  and  in  that  state  of  mind 
killed  the  woman. 

The  truth  undoubtedly  is,  that  this  man  undertook  to  dis- 
charge the  delicate  and  important  duties  of  an  accoucheur  with- 
out any  anatomical  or  obstetric  skill  whatever;  and  although 
he  had  passed  through  cases  successfully,  when  the  moment  and 
the  case  occurred  that  required  skill  and  caution,  he  had  them 
not ;  and  ignorantly  and  wickedly  caused  the  death  of  one  who 
had  intrusted  her  life  to  his  care,  which  obligation  he  had  reck- 
lessly assumed.  With  any  proper  degree  of  anatomical  skill  he 
could  not  have  failed  to  distinguish  a  uterus  from  a  placenta.  If 
he  did  not  have  the  necessary  knowledge  to  determine  between 
these  two  parts,  then  he  was  certainly  grossly  ignorant.  If  he 
did  know  the  difference  and  the  danger,  and  yet  used  so  much 
force,  violence  and  tension,  as  to  tear  down  the  uterus,  rupturing 
arteries  and  injuring  the  parts  generally,  then  he  was  guilty  of 

1  2  K.  &  S.,  G62,  p,  19 ;  C.  &  K,  232-3 ;  Id.  368-711. 


CRIMINAL   MALPRACTICE.  207 

gross  carelessness,  presumption  and  inattention,  and  he  should 
in  either  case  suffer  punishment,  that  others  as  well  as  himself 
might  be  deterred  from  repeating  the  offence,  in  like  cases. 
It  would  not  have  a  tendency,  as  Lord  Ellenborough  says,  to 
"  deter  reflecting  men  from  entering  into  "  the  medical  profession, 
by  punishing  those  criminally  ignorant  when  they  so  richly 
deserve  it;  but,  on  the  contrary,  it  would  induce  high-minded 
men  to  enter  it,  if  they  saw  science  and  skill  protected,  and 
ignorance  and  carelessness  punished  by  the  courts.  Such  a 
course  would  encourage  intelligent  physicians  to  remain  in  the 
profession  who  are  now  leaving  it. 

This  case  illustrates  how  ignorant  a  distinguished  Lord  Chief- 
Justice  of  England  may  be  as  to  the  science  of  medicine.  He 
supposes  that  because  an  ignorant  old  man  had  the  temerity  to 
act  the  part  of  an  accoucheur  among  a  class  of  low,  ignorant 
women,  that  therefore  he  must  necessarily  have  some  skill.  A 
most  absurd  proposition.  And  that  if  the  quacks  were  punished, 
well  educated  men  would  not  enter  the  profession;  while  the 
truth  undoubtedly  is,  as  already  stated,  that  many  honorable 
men  hesitate  to  enter  the  profession,  and  others  leave  it,  because 
these  pretenders  who  disgrace  its  name  and  practice — destroy- 
ing the  lives  of  their  victims  wantonly — are  not  held  to  as 
strict  and  rigid  an  accountability  as  the  circumstances  of  the 
case  will  warrant.  It  would  tend  greatly  to  encourage  the  honor- 
able members  of  the  medical  profession,  if,  when  a  case  of  Mal- 
practice is  so  completely  established  as  in  the  Williamson  case, 
such  punishment  as  would  be  proper  under  other  similar  cir- 
cumstances should  be  measured  out  to  the  offender. 

The  worthy  part  of  the  profession  ask  for  the  violation  of  no 
well-settled  principle  of  law  in  their  behalf.  That  this  verdict 
violated  law  there  can  be  no  doubt.1 

1  19  John,  381 ;  4  Denio,  464  ;  2  Bl.,  892-3-4.  899-900 ;  Broom's  Leg.  Max., 
168-9,  1st  ed.;  5  Mould  &  Sel.,  198 :  41  Eng.  Com.  Law  B.  425;  19  Wend. 
345-6  ;  4  Denio,  317 ;  2  Wend.  385  ;  3  Mete.  469. 


CHAPTER   XIV. 

CRIMINAL  MALPRACTICE— ENGLISH  ADJUDICATED  CASES,  CONTINUED. 
REX  r.  JOHN  ST.  JOHN  LONG,  6  Bingham,  440. 

THE  case  of  St.  John  Long,  illustrates  what  degree  of  ignorance, 
negligence,  and  hardihood,  can  at  times  pass  the  ordeal  of  an 
English  court  and  not  meet  with  condemnation  and  punishment. 

The  indictment  in  this  case  charged  that  St.  John  Long,  on. 
etc.,  at,  etc.,  did  make  an  assault,  and  with  a  certain  inflammatory 
and  dangerous  liquid,  secretly  prepared,  mixed  and  made  by  him, 
on  the  back  of  her,  the  said  C.  C.,  did  rub,  wash  and  sponge, 
and  caused  and  procured  to  be  rubbed,  washed  and  sponged,  he, 
the  said  J.  St.  J.  Long,  knowing  the  liquid  so  prepared,  mixed, 
and  made,  to  be  inflammatory  and  dangerous;  and  that  he  did 
by  the  said  rubbing,  etc.,  cause  upon  the  back  of  the  said  C.  C., 
one  mortal  inflammation  and  wound  of  the  length,  etc.,  and  did 
also,  by  means  of  such  rubbing,  etc.,  cause  and  procure  the  said 
C.  C.,  to  become  mortally  sick,  etc.;  the  indictment  also  stated 
that  the  deceased  languished  from  the  3d  of  August  to  the  17th 
of  the  same  month,  1830,  and  then  died.  There  were  other 
counts,  all  in  nearly  the  same  form ;  in  some  of  which  the  death 
was  stated  to  be  from  the  inflammation  and  wound,  and  in  the 
others  from  the  sickness.  There  was  no  count  which  expressly 
imputed  either  negligence,  carelessness,  ignorance  or  want  of 
skill  to  Long,  which,  perhaps,  there  should  have  been,  nor  was 
there  any  count  charging  the  inhaling  to  have  caused  the  death 
of  the  deceased. 

For  the  prosecution  it  was  said,  that  by  gross  misconduct, 
Long  had  produced  an  inflammation  which  had  caused  the  death 

(208) 


CRIMINAL   MALPRACTICE.  209 

of  Miss  Cashin.  The  act  was  done  by  a  servant  of  Mr.  Long, 
by  his  directions;  but,  as  the  servant  was  only  an  innocent 
agent,  Mr.  Long  was  to  be  considered  as  the  principal,  exactly 
the  same  as  if  he  had  done  it  himself.  Nothing  was  charged  to 
Long,  on  the  ground  that  he  was  not  a  regularly  educated 
physician.  The  prosecutor  in  the  case  asked  for  judgment 
against  Long,  on  the  broad  principle  that  he  was  no  more 
responsible  than  the  first  medical  practitioner  in  the  kingdom, 
but  still,  if  any  man  by  an  unlawful  act  should  cause  death,  it 
was  manslaughter ; — this  was  distinctly  laid  down  by  Mr.  Justice 
Foster,1  who  said:  "If  an  action,  unlawful  in  itself,  be  done 
deliberately,  or  with  intention  of  mischief,  or  great  bodily  harm 
to  particulars,  or  of  mischief  indiscriminately,  fall  where  it  may, 
and  death  ensues,  against  or  beside  the  original  intention  of  the 
party,  it  will  be  murder;  but  if  such  mischievous  intention  does 
not  appear,  this  is  matter-of-fact,  and  to  be  collected  from  circum- 
stances, and  if  the  act  was  done  heedlessly  and  incautiously,  it  will 
be  manslaughter, — nor  accidental  death,  because  the  act  upon 
which  the  death  ensued  was  unlawful."  There  was  also  another 
proposition  of  law,  which  was,  that  if,  in  the  prosecution  of  any 
lawful  act,  any  thing  was  done  which  was  imprudent,  irregular 
or  improper,  and  death  ensues,  it  would  be  manslaughter. 
Justice  Foster,2  who  said :  "  It  is  not  sufficient  that  the  act  upon 
which  death  ensueth  be  lawful  or  innocent,  it  must  be  done  in  a 
proper  manner,  and  with  due  caution  to  prevent  mischief."  The 
most  common  case  of  this  kind  was  that  of  a  coachman  driving 
fast  in  the  streets.  He  had  no  bad  intent,  but  the  act  being 
done  with  irregularity,  he  would  be  guilty  of  manslaughter  if 
death  ensued. 

It  was  said,  to  apply  this  principle  to  medical  men,  it  would 
stand  thus :  they,  whatever  their  skill,  must  use  due  caution ; 
but  there  was  no  doubt,  considerable  latitude  must  be  allowed 
them.  In  modern  times  poisons  were  exhibited  as  medicines  in 

1  Or.  Laws,  261.  2  Or.  Laws,  262. 

14 


210  MALPRACTICE. 

certain  cases ;  but  if  in  the  hurry  of  the  moment,  the  medical 
man  were  to  give  fifty  grains  instead  of  one,  he  would  be  guilty 
of  manslaughter  if  death  ensued.  So,  a  surgeon  had  a  right  to 
amputate  a  limb,  but  if  in  the  hurry  to  go  elsewhere,  he  left  the 
-arteries  imperfectly  secured,  and  death  ensued,  he  would  also  be 
guilty  of  manslaughter.  It  might  be  said,  that  the  consent  of 
Miss  Cashin  was  given  to  all  that  was  done;  but  still,  no  one 
could  permit  another  to  do  that  which  was  criminal.  Persons 
could  not  give  a  consent  to  put  their  own  lives  in  danger. 

It  appeared,  from  the  evidence  of  a  witness,  that  two  of  the 
family  of  Mrs.  Cashin  had  died  of  consumption;  but  that  Miss 
Cashin,  who  was  twenty-four  years  of  age,  had  enjoyed  good 
health ;  and  that  Long  told  him  (the  witness,)  that  ho  (L.,)  had 
informed  a  young  lady  that  unless  Miss  C.  put  herself  under  his 
care,  she  would  die  of  consumption  in  two  months ;  and  that,  on 
this  being  communicated  to  Mrs.  Cashin,  she  placed  her  daughter 
under  L.'s  course  of  treatment,  hoping  to  prevent  her  having 
consumption.  The  witness  also  stated  that  L.  told  him  that  he 
rubbed  a  mixture  on  different  parts  of  the  bodies  of  his  patients, 
and  that  it  had  been  applied  to  Miss  Cashin.  It  was  proved  by 
another  witness  for  the  prosecution,  (Mrs.  Roddis,)  that  she  went 
with  Miss  Cashin  to  L.'s  on  the  13th  of  August,  respecting  a 
wound  on  her  back,  and  that  Miss  Cashin  then  inhaled,  and  that, 
on  the  next  day,  Long  examined  Miss  Cashin's  back,  and  said 
it  was  in  a  beautiful  state,  and  that  he  would  give  one  hundred 
guineas  if  he  could  produce  a  similar  wound  on  the  person  of 
some  of  his  patients.  Mrs.  Roddis  stated  that  she  directed 
Long's  attention  to  the  part  of  the  wound  which  was  of  a  darker 
appearance,  and  that  he  stated  that  this  proceeded  from  inhaling, 
and  that  unless  those  consequences  were  produced,  he  could  not 
expect  a  beneficial  result.  The  wound,  at  this  time,  was  about 
five  or  six  inches  square.  The  witness  further  stated,  that  Miss 
Cashin  was  suffering  much  from  sickness,  and  she  mentioned  this 
to  Mr.  Long,  who  said  that  it  was  of  no  consequence,  but,  on  the 
contrary,  a  benefit  j  and  that  those  symptoms,  combined  with  the 


CRIMINAL   MALPRACTICE.  211 

wound,  were  a  proof  that  his  system  was  taking  due  effect ;  and 
that,  on  Sunday,  the  15th,  Miss  Cashin  having  got  worse,  Mr. 
Long  said  that,  in  two  or  three  days,  she  would  be  iu  better 
health  than  she  had  ever  been  in  her  life,  and  spoke  very  confi- 
dently that  the  result  of  his  system  would  be  to  prolong  her  life, 
and  that  no  person  could  be  doing  better  than  Miss  Cashin. 

At  this  interview  Mrs.  Roddis  showed  Mr.  Long  the  wound 
on  Miss  Cashin's  back,  which  had  extended.  She  also  stated 
that  Mr.  Long,  on  Sunday,  the  ]  5th,  was  desired  to  do  something 
to  stop  the  sickness  of  Miss  Cashin,  but  that  he  said  he  had  a 
remedy  in  his  pocket,  which  he  would  not  apply,  as  he  knew  that 
sickness  had  been  beneficial ;  and  he  also  stated,  on  that  day, 
and  on  Monday,  the  16th,  that  Miss  Cashiu  was  doing  uncom- 
monly well.  She  died  on  Tuesday,  the  17th. 

It  was  also  proved  by  Mr.  Brodie,  the  celebrated  surgeon,  that 
he  saw  Miss  Cashin  on  Monday  before  she  died,  and  that  her 
back  was  extensively  inflamed,  as  large  as  a  plate ;  and  that  in  the 
center  was  a  spot  as  large  as  the  palm  of  his  hand,  black  and 
dead,  which  was  in  a  sloughing  or  mortified  state.  Mr.  Brodie 
stated  that  he  did  not  consider  Miss  Cashin  to  be  in  any  imme- 
diate danger,  and  that  he  thought  that  some  very  powerfully- 
stimulating  liniment  had  been  applied  to  her  back.  In  his  cross- 
examination  he  said  that  it  was  very  common  to  produce  a 
counter-irritation,  and  that  the  things  used  to  produce  that  pro- 
duced very  different  effects  upon  different  constitutions;  but  in 
re-examination,  he  stated  that,  applying  a  lotion  of  a  strength 
capable  of  causing  the  appearances  he  saw,  to  a  person  of  the  age 
and  constitution  of  the  deceased,  if  in  perfect  health,  was  likely 
to  damage  the  constitution,  and  produce  disease  and  danger. 
Mr.  Brodie  also  stated  that  the  appearances  on  Miss  Cashin's 
back  were  quite  sufficient  to  account  for  her  death.  Several  other 
medical  men,  who  had  examined  the  body  of  the  deceased,  stated, 
that  on  the  most  careful  examination,  they  could  not  discover  any 
latent  disease,  or  seeds  of  disease.  A  servant  of  Mr.  Long's, 
named  Ann  Dyke,  stated  that  on  the  3d  of  August,  she,  by  the 


212  MALPRACTICE. 

direction  of  Mr.  Long,  rubbed  Miss  Cashin's  back  with  a  liquid, 
but  that  she  did  not  know  what  the  liquid  was.  In  her  cross- 
examination  she  stated  that  Mr.  Long  had  a  great  many  patients, 
many  of  them  persons  of  rank,  arid  that  she  rubbed  Miss  Cashin's 
back  with  the  same  liquid  that  was  used  for  the  other  patients. 

On  the  part  of  the  defense,  it  was  asked  if  a  greater  effect  was 
produced  on  Miss  Cashin  than  on  other  persons  ?  The  question, 
though  objected  to  on  the  part  of  the  prosecution,  on  the  ground 
that  it  was  not  in  issue  whether  the  defendant  had  done  good  or 
not  in  other  cases,  was  permitted  by  Justice  PARKE  and  Mr. 
Baron  GARROW,  holding  that  the  question  might  be  put,  and  that 
the  witness  might  be  asked  the  names  of  the  persons  who  attended 
at  the  same  time,  and  were  treated  in  the  same  manner  as  Miss 
Cashin.  The  witness  stated  that  the  Marchioness  of  Ormond  and 
Lady  Harriet  Butler  were  at  Mr.  Long's  at  the  same  time  that 
Miss  Cashin  was  there,  and  that  the  same  lotion  was  applied  to 
them,  and  also  to  Mrs.  Ottley  and  many  others. 

The  defense  submitted  that,  in  point  of  law,  that  this  was 
nothing  like  a  case  of  manslaughter ;  and  they  cited  1  Hale's  P. 
C.  429 ;  4  Bl.  Com.  b.  4,  c.  14,  and  the  Van  Butchell  case,  and 
argued  that  it  was  quite  clear  that  Mr.  Long  intended  to  prevent 
or  cure  the  disease. 

Mr.  Justice  PARKE  said  :  "  I  am  in  this  difficulty.  I  have  an 
opinion,  and  my  learned  brother  differs  from  me.  I  must,  there- 
fore, let  the  case  go  to  the  jury." 

Mr.  Baron  GARROW  said :  "  In  Rex  v.  Van  Butchell,  the  learned 
judge  had  very  good  ground  to  stop  the  case,  as  there  was  no 
evidence  as  to  what  had  been  done.  I  make  no  distinction  be- 
tween the  case  of  a  person  who  consults  the  most  eminent  phys- 
ician, and  the  case  of  those  whose  necessities  or  folly  may  cany 
them  into  any  other  quarter.  It  matters  not  whether  the  indi- 
vidual consulted  be  the  President  of  the  College  of  Physicians, 
the  President  of  the  College  of  Surgeons,  or  the  humblest  bone- 
'setter  of  the  village ;  but  be  it  the  one  or  the  other,  he  ought  to 
bring  into  the  case  ordinary  care,  skill  and  diligence.  Why  is  it 


CRIMINAL   MALPRACTICE.  213 

that  we  convict  in  cases  of  death  by  driving  carriages?  Because 
the  parties  are  bound  to  have  care,  skill  and  caution.  I  am  of 
opinion  that  if  a  person,  who  has  ever  so  much  or  so  little  skill, 
sets  my  leg,  and  does  it  as  well  as  he  can,  and  does  it  badly,  is 
excused ;  but  suppose  the  person  comes  drunk,  and  gives  me  a 
tumbler-full  of  laudanum,  and  sends  me  into  the  other  world,  is 
it  not  manslaughter  ?  And  why  is  that  ?  Because  I  have  a  right 
to  have  reasonable  care  and  caution. 

It  was  said  there  was  a  case  on  the  Northern  Circuit,  where  a 
man,  who  was  drunk,  went  and  delivered  a  woman,  who,  by  his 
mismanagement,  died.  He  was  sentenced  to  six  months'  impris- 
onment." 

For  the  defense,  twenty  witnesses  were  called,  including  the 
Marchioness  of  Ormond  and  Mrs.  Ottley,  who  stated  that  they 
had  been  patients  of  Mr.  Long,  and  that  they  were  satisfied  with 
his  skill  and  diligence.  One  of  the  witnesses  stated  that  he 
should  never  cease  to  pray  for  Mr.  Long  as  long  as  he  lived. 
Another,  a  lady,  said  that  she  could  never  be  sufficiently  thankful 
to  him  for  what  he  had  done  for  her  family ;  and  another  was  a 
surgeon,  who  had  lived  in  Jamaica  for  thirty-six  years,  and  he 
expressed  himself  perfectly  satisfied  with  Mr.  Long's  treatment 
and  conduct. 

Mr.  Justice  PARKE,  in  summing  up,  said :  "  The  learned  counsel 
for  the  prosecution  truly  stated,  in  the  out-set,  that  whether  the 
party  be  licensed  or  unlicensed  is  of  no  consequence,  except  in 
this  respect,  that  he  may  be  subject  to  pecuniary  penalties  for  act- 
ing contrary  to  charters  or  acts  of  Parliament ;  but  it  can  not 
Affect  him  here.  For  this  I  have  the  authority  of  that  great  and 
eminent  person,  Lord  Chief-Justice  Hale,  who  has  expressly  said, 
that  though  physicians  and  surgeons,  if  they  are  not  licensed, 
may  be  subject  to  penalties,  yet  they  are  not  answerable  crim- 
inally on  that  account.  His  phrase  is,  '  God  forbid  that  any  mis- 
chance of  this  kind  should  make  a  person  guilty  of  murder  or 
manslaughter ;'  and,  therefore,  licensed  or  unlicensed,  certainly  does 
not  signify ;  I  agree  with  my  learned  brother  that  what  is  called 


214  MALPRACTICE. 

mala  praxis  in  a  medical  person,  is  a  misdemeanor ;  but  that  de- 
pends upon  whether  the  practice  he  has  used  is  so  bad  that  every 
body  will  see  that  it  is  mala  praxis.  The  case  at  Lancaster  dif- 
fers from  this  case.  I  have  communicated  with  Lord  Chief-Justice 
Tindal,  who  tried  that  case,  and  he  informed  me  that  the  man  was 
a  blacksmith,  and  was  drunk,  and  was  so  completely  ignorant  of 
the  proper  steps,  that  he  totally  neglected  what  was  absolutely  neces- 
sary after  the  birth  of  the  child.  That,  certainly  was  one  of  the 
most  outrageous  cases  that  ever  came  into  a  court  of  justice.  I 
would  rather  say,  with  my  Lord  Ellenborough  in  the  case  of  Rex  v~ 
Wiliamson,  '  That  a  medical  man  is  not  to  be  charged  with  man- 
slaughter, unless  he  has  been  guilty  of  criminal  misconduct, 
arising  either  from  the  grossest  ignorance  or  the  most  criminal 
inattention.'  And  this  is  important  here ;  for  though  he  be  not 
licensed,  yet  experience  may  teach  a  man  sufficient;  and  the 
question  for  you  will,  by  and  by,  be,  whether  the  experience  this 
individual  acquired  does  not  negative  the  supposition  of  any  gross 
ignorance  or  criminal  inattention.  The  case  quoted  from  the 
Institutes  of  Lord  Coke,  who  lived  upward  of  two  hundred  years 
ago,  occurred  at  a  time  when  there  were  very  few  cases  of  the 
kind,  and  was  deemed  to  be  a  case  of  manslaughter.  But  i  do 
not  derogate  from  his  high  and  illustrious  character,  when,  as  far 
as  criminal  law  is  concerned,  I  set  against  it  the  authority  of  my 
Lord  Chief-Justice  Hale,  on  whom,  when  authority  is  quoted, 
reliance  is  always  placed.  He  says :  '  If  a  physician  gives  a  per- 
son a  potion,  without  any  intention  of  doing  him  any  bodily  hurt, 
but  with  intent  to  cure  him,  or  prevent  a  disease,  and  contrary  to 
the  expectation  of  the  physician,  it  kills  him,  this  is  no  homicide : 
and  the  like  of  a  chirurgeon ;'  and  he  quotes  the  Year-Book,  3 
Ed.  3 ;  and  he  goes  on  to  say, '  And  I  hold  their  opinion  to  be 
erroneous  who  think  if  he  be  no  licensed  chirurgeon  or  physician 
that  occasioned  this  mischance,  that  then  it  is  felony,  for  physic 
and  salves  were  before  licensed  physicians  and  chirurgeons ;'  and 
he  proceeds  further  and  says:  'These  opinions  may  serve  to  cau- 
tion ignorant  people  not  to  busy  in  this  kind  with  tampering  with 


CRIMINAL   MALPRACTICE.  215 

physic,  but  are  no  safe  rules  for  judges  or  jury  to  go  by.'  I  say 
the  same — that  the  public  weal  is  deeply  interested  in  preventing 
ignorant  persons  from  tampering  with  these  subjects.  It  is  true, 
his  next  reason,  about  the  want  of  surgeons  in  the  country,  does 
not  apply  here ;  because,  in  London,  all  persons  can  obtain  the 
assistance  of  the  best  men,  however  poor  they  are.  The  ques- 
tion is,  whether  there  was  gross  ignorance  in  this  gentleman,  or 
scandalous  inattention  in  the  treatment  of  this  lady.  The  opinion 
of  Lord  Chief-Justice  Hale  is  recorded  and  adopted  in  Sir  Edward 
East's  Pleas  of  the  Crown,  and  in  Blackstone's  Commentaries. 
I  come  now  to  the  case  of  Van  Butchell,  decided  here  only 
twelve  months  ago  by  Mr.  Baron  Hullock,  of  whom  it  may  be 
said,  that  a  sounder  lawyer  or  a  stronger-headed  man  was  never 
known  in  this  profession.  I  quote  this  case  rather  to  show  you 
what  that  learned  person's  strong  opinion  was  upon  the  general 
question,  on  the  danger,  not  of  punishing  the  man  found  guilty 
of  gross  negligence,  but  whether  his  practice  can  be  questioned 
whenever  an  operation  happens  to  fail.  He  says :  '  It  is  my 
opinion  that  it  makes  no  difference  whether  the  party  be  a  reg- 
ular or  irregular  surgeon;'  and  also,  ' There  is  no  doubt  that 
there  may  be  cases  where  both  regular  and  irregular  surgeons 
might  be  liable  to  an  indictment,  as  there  might  be  cases  where, 
from  the  manner  of  the  operation,  even  malice  might  be  inferred.' 
I  agree  with  him,  that  there  may  be  such  cases  as  those  he  has 
first  mentioned,  and  you  will  have  to  decide  whether  this  is  one 
of  them  or  not.  I  wish  also  to  state  to  you  what  Lord  Ellen- 
borough  said  in  the  case  of  Rex  v.  Williamson,  which  was  the  case 
of  a  man  who  acted  as  a  man-midwife.  Lord  Eilenborough  there 
says,  that,  from  the  evidence,  it  appeared  that  the  prisoner  had 
delivered  many  women,  at  different  times;  and  from  this,  he  must 
havo  had  some  degree  of  skill.  He  goes  along  with  me  in  think- 
ing that  skill  may  be  acquired  by  practice.  That  is  my  opinion 
here,  and  there  are  twenty-nine  witnesses,  all  speaking  to  the 
prisoner's  skill  in  their  cases.  There  is  clear  evidence  that  the 
prisoner  did  the  act  that  shortened  Miss  Cashin's  life.  But  that 


216  MALPRACTICE. 

does  not  prove  the  case,  unless  you  think  there  was  gross 
ignorance,  or  inattention  to  human  life  to  be  inferred  from  it.  It 
is  evident  he  had  some  information.  Whether  he  drew  improper 
conclusions  from  it  is  not  for  you  or  me  to  say.  It  seems  from 
Mr.  Sweetman's  evidence  that  the  disorder  had  been  in  the 
family — that  a  son  was  dead,  and  a  daughter  was  likely  to  die. 

The  prisoner  always  said  that  his  remedy  would  cure  consump- 
tion ;  and  if  the  disease  had  not  been  in  the  family,  they  would 
not  have  sent  to  him  at  all.  The  prisoner's  counsel  could  not  by 
law,  ask  the  defendant's  witnesses  any  questions  as  to  their 
respective  disorders,  and  the  mode  of  cure,  as  my  brother  and  1 
were  of  opinion  that  it  was  not  evidence.  All  that  \vas  evidence, 
was,  that  he  had  displayed  so  much  skill  in  other  cases  as  to  show 
that  he  was  not  that  grossly-ignorant  or  inattentive  person  who 
could  be  guilty  of  manslaughter,  according  to  Lord  EJenborough's 
opinion  in  the  case  before  mentioned.  The  refusal  of  the  prisoner 
to  apply  the  medicine,  in  order  to  stop  the  sickness,  although  he 
had  it  with  him,  would,  in  my  opinion,  if  wickedly  done,  amount 
to  murder;  but  he  mentioned  a  case  in  which  sickness  had  been 
beneficial.  Undoubtedly,  the  result  proves  a  very  erroneous 
opinion  on  his  part ;  and  it  seems  singular  that  the  restlessness 
and  other  circumstances  did  not  awaken  apprehension  and  call 
for  further  measures ;  but  the  question  again  recurs,  whether  this 
was  an  erroneous  judgment  of  a  person  who  was  of  general  com- 
petency, though  he  unfortunately  failed  in  this  particular  instance? 
It  appears  that  he  said,  on  examining  the  wound  on  Miss  Cashin's 
back,  that  he  would  give  a  hundred  guineas  if  he  could  produce  a 
similar  wound  on  some  of  his  patients.  This  seems  to  show  his 
confidence  in  his  proceedings ;  and  there  is  this  observation  to  be 
made  of  him  throughout,  that  he  seems  to  have  been  living  in  a 
fashionable  part  of  the  metropolis,  and  attended  by  right  honor- 
able persons,  and  it  would  be  against  his  interest  to  act  ignorantly 
and  carelessly. 

It  appears,  with  respect  to  Miss  Cashin,  that  he  did  not  go  to 
seek  her  out,  and  this  will  be  for  you  to  take  into  your  consider- 


CRIMINAL   MALPRACTICE.  217 

ation.  With  respect  to  the  application  of  the  mixture,  if  he  com- 
manded the  woman  to  use  it,  it  is  the  same  as  if  he  used  it 
himself.  Perhaps,  from  the  evidence,  you  will  think  that  the  act 
caused  the  death ;  but  still  the  question  recurs  as  to  whether  it 
was  done  either  from  gross  ignorance  or  criminal  inattention. 

No  one  doubts  Mr.  Brodie's  skill ;  but  that  is  not  quite  the 
question.  It  is  not  whether  the  act  done  is  the  thing  that  a  per- 
son of  Mr.  Brodie's  great  skill-  would  do,  but  whether  it  shows 
such  total  and  gross  ignorance  in  the  person  who  did  it,  as  must 
necessarily  produce  such  a  result.  On  the  one  hand,  we  must 
be  careful  and  most  anxious  to  prevent  people  from  tampering 
with  physic,  so  as  to  trifle  with  the  life  of  man ;  and,  on  the  other 
hand,  we  must  take  care  not  to  charge  criminally  on  a  person 
who  is  of  general  skill,  because  he  has  been  unfoiiunate  in  a  par- 
ticular case.  It  is  God  that  gives  health  :  man  only  administers 
medicine ;  and  the  medicine  that  the  most  skillful  may  administer 
may  not  be  productive  of  the  expected  effect ;  but  it  would  be  a 
dreadful  thing  if  a  man  were  to  be  called  in  question  criminally 
whenever  he  happened  to  miscarry  in  his  practice.  These  are 
things  for  your  consideration,  when  you  are  considering  whether 
a  man  is  acting  wickedly;  for  I  call  it  acting  wickedly  when  a 
man  is  grossly  ignorant,  and  yet  affects  to  cure  people,  or  when 
he  is  grossly  inattentive  to  their  safety.  With  respect  to  the 
evidence  on  the  part  of  the  prisoner,  all  the  witnesses  that  he  has 
called  have  spoken  of  him  as  being  perfectly  satisfied  with  his 
skill,  attention  and  behaviour,  in  every  respect.  It  is  observable 
of  several  of  them,  that,  after  their  families  have  been  attended, 
they  put  themselves  under  his  care,  so  satisfied  were  they  with 
his  conduct.  One  of  them  says  that  he  shall  pray  for  him  as 
long  as  he  lives ;  and  another,  (a  lady,)  says  she  can  never  suf- 
ficiently thank  him  for  what  he  has  done  for  her  family.  It  is 
also  to  be  remarked,  that  one  of  these  witnesses  is  himself  a  sur- 
geon, who  lived  for  thirty-six  years  in  a  hot  climate,  and  he  ex- 
presses himself  perfectly  satisfied.  You  will  take  the  whole  case 
into  your  consideration,  and  if  you  think  there  was  gross  igno- 


218  MALPRACTICE. 

ranee  or  scandalous  inattention,  in  the  conduct  of  the  prisoner, 
then  you  will  find  him  guilty ;  and  if  you  do  not  think  so,  then 
your  verdict  will  be  otherwise." 

This  certainly  was  a  most  liberal  charge,  so  far  as  it  concerned 
the  prisoner. 

The  jury,  after  some  deliberation,  found  the  prisoner  guilty,  and 
he  was  subsequently  sentenced  to  pay  a  fine  of  £250  to  the  king. 

There  was  evidently  a  difference  of  opinion  in  this  case  between 
the  two  distinguished  judges  who  tried  it,  as  to  the  rule  of  law 
to  be  applied.  PARKE  says :  "  I  am  in  this  difficulty.  I  have  an 
opinion,  and  my  learned  brother  differs  from  me.  I  must,  there- 
fore, let  it  go  to  the  jury." 

In  the  Butchell  case,  Baron  Hullock  arrested  the  trial,  and  told 
the  jury  that  "the  prosecution  could  not  be  sustained,  and  that 
no  imputation  ought  to  be  cast  upon  the  prisoner  at  the  bar ;" 
and  Lord  Ellenborough,  in  the  Williamson  case,  told  the  jury  they 
ought  not  to  find  the  prisoner  guilty,  although  he  had  mistaken 
the  uterus  for  the  placenta,  tearing  it  down,  and  thus  destroying  the 
life  of  the  patient.  This  case  also  went  to  the  jury  under  a  charge 
every  way  favorable  to  the  prisoner. 

It  was  in  evidence  that  the  deceased  was  in  good  health  until 
the  application  was  made  upon  her  person  by  Long.  Mr.  Brodie, 
one  of  the  oldest  and  most  accomplished  surgeons  of  England, 
testified,  that  when  he  saw  the  case  there  was  a  spot  on  the  back, 
as  large  as  his  hand,  black  and  dead,  mortified  and  sloughing. 
Long  pronounced  this  a  "  beautiful  state,"  and  said  that (i  he  would 
give  a  hundred  guineas  if  he  could  produce  a  similar  wound  on  the 
person  of  some  of  his  patients."  Is  not  this  a  most  startling 
admission  that  he  was  grossly  ignorant?  Mr.  Brodie  said,  what 
every  medical  man  knows,  that  the  application  of  a  lotion  of  a 
strength  capable  of  causing  the  appearances  he  saw,  to  a  person 
of  the  age  and  constitution  of  the  deceased,  if  in  perfect  health, 
was  likely  to  damage  the  constitution  and  produce  disease  and 
danger.  Long  said  this  effect  was  of  "  no  consequence ;"  that  the 
deathly  sickness,  "  combined  with  the  wound,  were  a  proof  that 


CRIMINAL   MALPRACTICE.  219 

his  system  was  taking  due  effect."  He  also  stated  that  he  had  a 
medicine  in  his  pocket  that  would  stop  the  sickness ;  but  that  he 
would  not  apply  it  because  the  sickness  was  beneficial.  This 
assertion,  that  he  possessed  a  medicine  of  such  virtue,  alone 
stamps  Long  at  once,  in  the  mind  of  every  intelligent  medical 
man,  as  an  impostor.  The  Materia  Medico,  affords  no  medicine, 
and  there  can  be  no  combination  of  remedies,  that  will  instantly 
or  proximately  cause  a  sickness  of  the  stomach  to  abate,  depend- 
ing, as  in  this  case,  on  a  fatal  organic  disease.  Long  knew  he 
had  no  such  medicine,  or  he  was  criminally  ignorant. 

This  case,  like  that  of  Williamson,  illustrates  and  proves  what 
must  be  acknowledged,  although  a  painful  fact,  that  the  most 
illustrious  judges — illustrious  for  their  great  legal  knowledge — 
show  almost  an  entire  want  of  medical  and  anatomical  knowledge. 
Lord  Eilenborough  thinks  a  man  may  mistake  the  uterus  for  the 
placenta — tear  it  out  by  reason  of  this  mistake,  and  kill  the 
woman,  and  yet  not  be  guilty  of  gross  ignorance !  There  can 
not  be  the  least  excuse  for  an  error  of  this  kind,  and  the  man 
guilty  of  it  should  be,  not  only  indicted,  but  visited  with  the 
heaviest  penalties  of  the  law ; — and  a  judge  ought  to  have  knowl- 
edge enough  to  know  it. 

In  this  Long  case,  PARKE,  J.,  thinks  the  fact  that  the  girl  went  to 
the  doctor  and  solicited  his  aid  there,  instead  of  being  sought  out 
by  him,  "  should  be  taken  into  consideration "  by  the  jury. 
What  more  powerful  and  effective  means  could  the  impostor, 
Long,  have  used  to  bring  the  girl  within  his  power,  than  to  send 
word  to  her  and  her  mother,  that  unless  she  put  herself  under  his 
care  she  would  die  of  consumption  in  three  months? 

No  message  could  have  been  more  terrible,  under  the  circum- 
stance of  the  family  being  of  a  consumptive  habit,  as  they  sup- 
posed, than  such  a  communication,  coming  from  one  who  had,  in 
the  language  of  the  judge,  "always  said  that  his  remedy  would 
cure  consumption."  The  judge  further  says,  "If  the  disease 
had  not  been  in  the  family,  they  would  not  have  sent  for  him  at 
all."  It  is  equally  evident  that  if  the  disease  had  not  been  in 


220  MALPRACTICE. 

the  family,  this  quaok  could  not  have  insinuated  himself,  by  the  aid 
of  a  female  friend  of  the  family,  into  its  bosom,  by  pronouncing 
death  upon  one  already  alarmed  for  fear  of  hereditary  consumption. 

REX  v.  JOHN  ST.  JOHN  LONG,  (Second  case);   C.  &  P.  423. 

Within  a  year  after  the  former  case  was  tried,  St.  John  Long 
is  again  found  in  court  as  defendant  in  another  case  of  the  same 
kind  already  cited.  He  made  a  great  noise  in  London,  at  one 
time,  as  a  consumption  curer.  The  theory  of  this  noted  quack 
was,  that  all  diseases  proceeded  from  buttercups.  Every  man, 
woman  and  child  eats  mutton,  beef  or  butter,  or  drinks  milk; 
every  cow  and  sheep  eats  buttercups  with  their  grass ;  buttercups 
are  rank  and  acrid  weeds ;  ergo,  all  diseases  proceed  from  butter- 
cups. How  beautifully  simple!  This  theory  was  enough  to 
make  Mr.  Long  at  once  noted ;  and  "  the  Marchioness  of  Orrnond 
and  Lady  Harriet  Butler  were  among  his  patients !" 

In  this  case  the  first  count  in  the  indictment  charged  that  the 
prisoner  did,  on  the  6th  of  October,  and  at  other  times,  cause 
Mrs.  Lloyd  to  inhale  certain  noxious  and  injurious  vapors,  and 
that  he,  with  a  certain  corrosive,  inflammatory  and  dangerous 
liquid,  secretly  prepared,  mixed  and  made  by  him,  feloniously  did 
rub,  wash  nnd  sponge,  and  cause  and  procure  to  be  rubbed,  washed 
and  sponged,  the  breast  and  chest  of  the  patient,  and  thereby 
caused  a  sickness  and  ulcer  that  resulted  in  death,  on  the  8th  of 
November.  It  charged  the  prisoner  with  manslaughter. 

The  second  count  charged  only  the  rubbing,  omitting  the 
inhaling.  The  3d,  4th,  5th,  6th,  7th  and  8th  counts  only  varied 
the  statement  of  the  manner  in  which  the  liquid  was  applied. 

The  9th  count  contained  an  allegation  that  the  prisoner  applied 
the  liquid  to  the  chest,  he  "  well  knowing  the  ^aid  liquid  to  be  in- 
flammatory and  dangerous  in  that  behalf,"  and  described  the  chest 
as  becoming  mortally  inflamed,  ulcerated  and  gangrened  all  over 
the  same."  The  10th  count  was  similar,  omitting  the  scienter. 
Plea,  not  guilty. 

Denman,  A.  #.,  in  opening  the  case  for  the  prosecution,  stated 


CRIMINAL   MALPRACTICE.  221 

that  he  should  not  offer  any  particular  evidence  as  to  the  inhaling, 
as  it  did  not  appear,  as  far  as  they  were  able  to  judge,  to  be  in 
any  way  the  cause  of  the  death,  which  appeared  to  be  solely  occa- 
sioned by  the  application  of  the  mixture.  If  the  facts  were  made 
out,  the  question  would  arise,  whether  the  prisoner  was  guilty  of 
man  slaughter.  The  charge  against  him  was  not  of  acting  with 
malice  aforethought,  but  of  applying  himself  to  the  treatment  of 
a  case  of  which  he  knew  nothing,  and  of  using  a  most  dangerous 
liquid,  with  the  effect  of  which,  in  the  judgment  of  charity,  he 
must  be  supposed  to  have  been  unacquainted.  If,  with  gross 
ignorance  of  the  subject,  he,  with  the  desire  of  gain,  undertook 
the  case,  and,  in  consequence,  death  ensued,  it  would  be  clearly  a 
homicide,  by  no  means  either  justifiable  or  excusable.  The  law 
admitted  of  no  doubt.  If  a  party,  grossly  ignorant,  undertook 
to  deal  with  deadly  remedies,  without  knowing  the  effect  they 
would  produce,  he  was  answerable  criminally,  if  they  occasioned 
death.  The  question,  whether  the  physician  was  regularly  ed- 
ucated or  not,  did  not  apply.  A  regular  medical  education  might 
furnish  a  defense  which  an  uneducated  person  could  not  have ; 
but  the  absence  of  such  education  certainly  did  not  make  a  per- 
son guilty.  The  only  question  was,  whether,  in  point  of  fact,  the 
prisoner  was  ignorant  of  what  he  was  about,  and  whether  that 
ignorance  was  the  cause  of  his  patient's  death.  If  a  man,  in  the 
most  extensive  practice,  were  to  take  cognizance  of  a  particular 
case,  of  which,  by  his  treatment,  he  showed  that  he  was  clearly 
ignorant,  his  great  practice  would  not  be  any  excuse. 

The  witnesses  called  on  the  part  of  the  prosecution,  were  Capt. 
Lloyd,  the  husband  of  the  deceased  ;  Mrs.  Campbell,  a  relation,  at 
whose  house  she  was  staying ;  and  Mr.  Campbell,  Mr.  Vance,  Mr. 
Brodie  and  Mr.  Frankum,  surgeons. 

From  the  examination-in-chief  of  Capt.  Lloyd,  the  following 
facts  appeared  :  The  deceased,  for  several  years,  had  been  troubled 
occasionally,  when  she  caught  cold  or  any  thing  excited  her,  with 
a  choking  sensation  in  the  throat,  for  which  she  had,  about  three 
years  before  her  death,  consulted  a  medical  man,  and  for  which 


222  MALPRACTICE. 

she  was  in  the  habit  of  applying  a  blister  to  the  throat,  and  after- 
ward of  healing  the  wound  with  a  simple  dressing  of  spermaceti 
ointment.  A  son  of  the  deceased  was  under  the  care  of  Mr. 
Long;  and  on  various  occasions,  when  the  deceased  attended  with 
her  son,  she  mentioned,  in  conversation  with  Mr.  Long,  the  com- 
plaint in  her  throat ;  and  the  conversation  eventually  led  to  her 
putting  herself  under  his  care  on  the  Gth  of  October,  1830,  at 
which  time  she  was  in  very  good  general  health.  On  the  3d  of 
October,  she  had  applied  a  small  blister  to  the  throat,  but  the 
wound  occasioned  by  it  was  nearly  well ;  on  the  Gth,  7th,  8th, 
9th  and  10th,  she  went  to  Mr.  Long's,  and  on  the  evening  of  the 
10th  complained  to  her  husband  of  a  violent  burning  across  the 
-chest,  in  consequence  of  which  he  looked  at  it,  and  found  great 
redness  across  her  bosom,  darker  in  the  center  than  at  the  other 
parts.  She  also  complained  of  great  chilliness,  and  shivered  with 
<3old,  and  passed  a  very  restless  and  uncomfortable  night.  On 
•the  llth  she  was  very  unwell  all  day,  and  complained  of  great 
thirst ;  the  redness  was  more  vivid,  and  the  spot  in  the  center 
darker ;  round  the  edges  white  and  puffed  up,  and  there  was  a 
dirty  white  discharge  from  the  center.  Cabbage  leaves  had  been 
applied,  and  when  they  were  removed  they  appeared  slimy  from 
the  discharge.  The  night  of  the  1 1  th  was  passed  very  uncom- 
fortably. On  the  morning  of  the  12th,  the  redness  on  the  breast 
and  chest  was,  if  any  thing,  greater,  and  the  spot  in  the  center 
more  puffed  up  and  darker;  the  redness  was  more  spread  round 
the  edges,  and  where  it  stopped  there  were  blisters  in  the  skin, 
apparently  from  the  discharge;  the  inner  part  of  the  arms  also 
were  red,  where  the  discharge  had  run  down  on  each  side.  Ou 
the  12th  she  was  quite  feverish  and  restless,  and  had  no  appetite; 
and  in  consequence  of  the  symptoms,  Capt.  Lloyd  went  to  Mr. 
Long  about  the  middle  of  the  day ;  Mr.  Long  asked  why  Mrs. 
Lloyd  had  not  come  to  inhale,  and  go  on  with  the  rubbing ; 
Capt.  Lloyd  replied,  it  was  impossible,  she  was  so  very  ill ;  that 
she  had  been  constantly  unwell  since  the  night  of  the  10th,  and 
was  suffering  a  great  deal  of  pain  and  sickness ;  Mr.  Long  said 


CRIMINAL    MALPRACTICE.  223 

he  dare  say  it  would  soon  go  off — it  was  generally  the  case;  he 
was  told  of  the  shivering  and  chilliness,  and  that  some  hot  wine 
and  water  had  been  given  to  relieve  her ;  he  said  hot  brandy 
and  water  would  have  been  a  better  thing,  and  to  put  her  head 
under  the  bed-clothes.  He  was  told  that  the  chest  and  breast 
looked  very  red  and  very  bad;  he  said  that  was  generally  the 
case  in  the  first  instance,  but  it  would  go  off  as  she  got  better,  and 
that  Capt.  L.  need  not  be  uneasy  about  it,  as  there  was  no  fear  of 
danger ;  Capt.  L.  requested  him  to  call  in  the  evening,  and  then 
told  him  where'  Mrs.  L.  was,  which  it  appeared  he  did  not  know 
before;  in  the  evening  he  came  and  saw  her;  in  the  course  of 
the  day  the  cabbage  leaves  had  been  removed,  and  a  dressing  of 
spermaceti  ointment  put  on  the  chest  instead ;  he  said  he  was  very 
sorry  to  see  her  so  unwell — that  she  ought  to  have  endeavored  to 
get  up  and  come  to  him,  and  he  would  have  relieved  her ;  she 
said  it  was  impossible,  she  was  in  such  pain  and  suffering,  and 
with  her  breast  open  in  that  way  it  might  be  dangerous.  He 
desired  to  look  at  it,  and,  observing  the  dressing,  said  those  greasy 
plasters  have  no  business  there,  and  she  ought  to  have  continued 
the  cabbage  leaves ;  she  said  she  could  not  bear  the  pain  of  keep- 
ing them  on ;  he  then  took  off  his  great  coat,  and  said  he  would 
rub  it  out ;  and  he  turned  up  the  cuff  of  his  coat,  as  if  for  the 
purpose  of  doing  so ;  she  exclaimed  with  fright,  and  expressed 
her  wonder  that  he  would  think  of  rubbing  while  her  breast  was 
in  so  bad  a  state ;  she  asked  if  there  was  no  way  of  keeping  the 
leaf  on  without  touching  the  breast ;  and  he  asked  her  what  she 
wished.  She  replied,  "  To  be  healed."  He  said  it  would  never 
heal  with  those  greasy  plasters ;  that  was  not  the  way  in  which  he 
healed  sores.  He  then  asked  for  a  towel,  and  began  rubbing  it  on 
the  breast,  particularly  in  the  center,  where  the  discharge  come 
from ;  he  said  that  old  linen  was  the  best  thing  to  heal  a  wound 
of  that  kind.  She  said  her  skin  and  flesh  were  very  healthy,  and 
always  healed  immediately  with  the  simple  dressing  she  had  used. 
He  said  old  linen  was  better,  but  she  might  make  use  of  the 
dressing  if  she  liked ;  he  saw  no  objection,  and  when  it  skinned 


224  MALPRACTICE. 

over  he  would  rub  it  again ;  she  said  no,  she  thought  she  would 
never  submit  to  rubbing  again,  from  what  she  was  then  suffering. 
He  then  went  away.  On  the  evening  of  the  following  day  (the 
loth,)  he  called  again,  but  Mrs.  Lloyd  would  not  see  him,  and 
begged  her  husband  not  to  let  him  come  up ;  and  he  never  saw 
her  afterward.  She  died  on  the  8th  of  November,  just  a  month 
and  a  day  after  she  put  herself  under  Mr.  Long's  care. 

On  the  cross-examination  of  Capt.  Lloyd,  he  said  that  his  son 
continued  to  attend  Mr.  Long  for  several  days  after  the  com- 
mencement of  the  deceased's  illness,  and  on  one  occasion  was 
desired  to  tell  Mr.  Long  that  he  need  not  come  to  see  her,  as  she 
was  better.  He  also  added,  that  a  person,  describing  himself  as 
a  medical  man,  and  saying  that  he  was  sent  by  Mr.  Long,  applied 
to  see  Mrs.  Lloyd,  and  was  not  allowed  to  see  her.  He  also  ad- 
mitted that  he  had  told  Mr.  Long  that  he  could  not  pay  lees  for 
his  son  until  after  Christmas,  and  that  Mr.  Long  s^aid  that  would 
not  make  any  difference;  he  might  send  him,  and  he  would  attend 
to  him. 

Mrs.  Campbell  stated  that  Mrs.  Lloyd  was  in  a  very  good  state 
of  health,  except  that  her  throat  was  sometimes  troublesome ;  that 
she  complained  of  a  stoppage  in  swallowing;  that  on  the  10th  of 
October,  when  the  shivering  came  on,  the  bed  was  warmed,  and 
Mrs.  Lloyd  put  into  it;  bottles  of  hot  water  were  applied  to  her 
feet;  and  that,  when  Mr.  Long  went  away,  after  having  seen 
her,  he  did  not  give  any  directions  as  to  diet,  or  order  her  any 
internal  medicine.  It  also  appeared  from  her  evidence,  that  pre- 
vious to  Mrs.  Lloyd's  putting  herself  under  the  care  of  Mr.  Long, 
she  had  attended  three  days  at  the  inquest  held  on  the  body  of 
Miss  Cashin. 

From  the  examination-in-chief  of  Mr.  Campbell,  the  surgeon,  it 
appeared  that  he  was  the  son  of  Mrs.  Campbell,  at  whose  house 
the  deceased  was  on  a  visit,  and  that  he  first  saw  the  deceased 
about  four  o'clock  in  the  afternoon  of  the  12th  of  October,  at  his 
mother's  request,  at  which  time  he  found  a  very  extensive  wound, 
covering  the  whole  anterior  part  of  the  chest,  which,  in  his  opinion, 


CRIMINAL   MALPRACTICE.  225 

might  be  produced  by  any  strong  acid ;  that  the  skin  was  de- 
stroyed, and  lay  in  folds  on  the  chest,  entirely  separated ;  that 
the  cellular  tissue  was  partly  destroyed,  and  there  was  a  consid- 
erable discharge  generally ;  that  the  wound  extended  from  one 
arm-pit  to  the  other  nearly,  and  from  the  throat  down  to  the  pit 
of  the  stomach;  that  the  skin  was  off  both  breasts,  and  the 
center  of  the  wound  was  darker,  and  in  a  higher  state  of  inflam- 
mation than  the  other  parts ;  that  he  removed  the  cabbage  leaves 
and  applied  the  dressing  of  spermaceti  ointment ;  that  he  saw  the 
deceased  on  the  13th,  and  afterward  daily,  several  times  a  day, 
till  her  death ;  that  he  considered  the  wound  very  dangerous  to 
life  when  he  first  saw  it,  but  only  continued  to  apply  the  sperma- 
ceti ointment  till  the  21st  of  October,  when  he  called  in  the 
assistance  of  Mr.  Vance,  who  continued  at  first  to  apply  the  same 
dressing,  only  adding  to  it  a  little  calamine  powder;  that,  on  the 
second  or  third  day  of  his  attendance,  Mr.  Vance  applied  a  bread- 
and-water  poultice ;  that  he  (Campbell,)  at  first  gave  Mrs.  Lloyd 
some  saline  aperient  medicine ;  and  when  the  center  spot  and 
the  under  part  of  the  chest  became  gangrenous,  which  they  did 
in  about  a  week,  she  had  bark,  mineral  acid  and  quinine.  The 
witness  added,  that,  in  his  opinion,  Mrs.  Lloyd  died  of  the  wound 
which  he  first  saw ;  that,  according  to  his  judgment,  it  was  not 
necessary  or  proper  to  produce  such  a  wound  to  prevent  any  dif- 
ficulty in  swallowing ;  and  that  he  did  not  know  of  any  disease 
in  which  the  production  of  such  a  wound  would  be  necessary  or 
proper.  He  further  stated,  that  he  informed  Mr.  Vance  of  the 
course  he  had  pursued,  and  nothing  which  he  or  Mr.  Vance  ap- 
plied could  possibly  increase  the  danger  to  the  patient.  On  his 
cross-examination,  he  said  that  he  had  been  in  practice  six  or 
seven  years ;  that,  in  the  course  of  his  practice,  he  had  known  a 
common  blister  often  produce  very  injurious  effects,  which  the 
person  who  prescribed  it  never  contemplated,  and  that  a  medical 
man  must  regulate  his  treatment  as  well  by  the  statements  of  the 
patient  as  by  external  appearances ;  that  he  did  not  wish  for  any 
additional  assistance  till  gangrene  commenced,  though  he  feared 
15 


22G  MALPRACTICE. 

it  would  take  place  from  the  first ;  and  that  he  stated  the  danger 
he  apprehended,  very  soon  after  he  was  called  in,  to  his  mother 
and  Captain  Lloyd,  and  a  sister  of  the  deceased,  but  that  twice 
they  had  some  hopes  of  her  eventual  recovery.  On  his  re- 
examination,  he  said,  that  he  did  not  consider  it  a  case  of  diffi- 
culty in  the  treatment ;  that  he  was  present  at  the  post-mortem 
examination,  and  that  the  wound  did  not  present  the  appearance 
which  he  had  ever  seen  produced  by  a  common  blister.  In 
answer  to  questions  from  the  judge,  he  said,  that  he  thought 
rubbing  on  the  12th  of  October,  when  he  first  saw  the  wound, 
would  have  increased  the  inflammation  and  could  not  have  been 
in  any  respect  beneficial. 

The  evidence  of  the  surgeon  Vance,  coincided  with  the  other 
witnesses  as  to  the  appearance  of  the  wound.  He  stated  also 
that  he  approved  of  the  treatment  pursued  by  Mr.  Campbell,  and 
that  he  had  attended  Mrs.  Lloyd  about  three  years  before 
her  death,  for  an  affection  of  the  throat,  which  he  at  first  thought 
a  case  of  narrow  oesophagus,  but  afterward  he  ascertained  to 
be  glolus  hystiricus ;  which  he  described  as  an  inverted  motion 
of  the  muscular  fibres  of  the  canal,  very  common  in  women  in 
early  life,  and  of  which  he  had  seen  many  thousand  cases,  but 
never  knew  it  produced  death.  He  described  the  appearance 
of  the  body  after  death,  and  said  it  was  internally  and  externally 
in  perfect  health,  with  the  exception  of  a  partial  disease  of 
the  thyroid  gland,  and  an  inflammatory  affection  of  the  lining 
membrane  of  the  windpipe,  (occasioned  from  their  contiguity 
to  the  ulcers,)  and  a  little  narrowness  at  the  entrance  of  the 
oesophagus,  which  he  believed  to  be  congenital,  as  there  was 
no  thickening  of  the  part.  He  attributed  the  death  of  Mrs. 
Lloyd  to  the  extent  of  the  mortification  caused  by  high  inflam- 
mation, produced  by  some  powerful  application.  At  one  time  he 
was  encouraged  that  the  patient  might  possibly  recover,  because 
the  diseased  and  healthy  parts  were  separating.  In  answer  to 
questions  from  the  judge,  he  said,  that  the  state  of  the  wound, 
as  described  on  the  12th  of  October,  might  produce  the  result 


CRIMINAL  MALPRACTICE.  227 

stated ;  that  he  thought  no  man  of  common  prudence  or  skill 
would  have  applied  a  liquid,  which,  in  two  days,  would  produce 
such  extensive  inflammation ;  though  all  irritating,  external 
applications  sometimes  exceeded  the  expectations  of  the  medical 
attendant;  but  he  should  say,  that  such  conduct  was  a  great 
proof  of  rashness  and  of  ignorance.  He  stated  further,  that  if 
he  had  been  called  in  on  the  12th,  he  could  most  probably  have 
prevented  the  death;  but  he  could  not  say  positively,  as  it 
seemed  to  be  a  case  of  great  peril  from  the  beginning. 

Mr.  Brodie  saw  the  deceased  on  the  29th  of  October,  and  then 
there  was  a  large  sloughing  ulcer,  which  he  believed  might  have 
been  produced  by  rubbing  a  corrosive  liniment  into  the  parts  on 
the  10th  of  October;  that  he  did  not  know  of  any  disease  which 
would  be  benefited  by  this  kind  of  treatment.  On  his  cross- 
examination,  he  said:  It  was  a  general  practice  to  produce 
counter-irritation,  and  the  same  application  may  be  beneficial  to 
one  patient  and  injurious  to  another,  according  to  habit  and 
constitution.  The  effect  of  a  liniment  or  blister,  or  any  other 
•external  irritant,  as  they  are  called,  sometimes  goes  beyond  the 
effect  intended,  and  the  most  scientific  practitioners  may  often 
be  deceived  in  his  expectations ;  he  can  not  always  calculate  to 
a  nicety  what  the  result  will  be.  He  did  not  recollect  any 
instance  in  which  death  has  ensued  from  a  blister  properly 
applied,  but  it  may  possibly  happen,  he  supposed ;  over  exercise 
would  produce  over  irritation  where  a  blister  has  been  applied. 
The  treatment  of  a  wound  is  to  be  judged  from  the  appearances 
and  the  state  of  the  patient.  It  would  be  desirable,  under  such 
circumstances,  to  know  the  nature  of  the  application ;  but  it 
might  not  lead  to  any  great  difference  in  the  treatment.  In 
cases  of  poison  we  do  not  apply  the  same  remedy,  especially 
where  it  has  been  taken  into  the  stomach.  Where  the  applica- 
tion has  been  external,  the  character  and  appearance  of  the 
wound  must  be  the  guide  to  the  surgeon.  Circumstances  may 
occur,  in  which,  when  a  particular  course  is  intended,  a  stranger's 
coming  in  and  pursuing  a  different  one  would  produce  mischieC 


228  MALPRACTICE. 

On  his  re-examination,  he  said:  "In  the  case  of  such  a  wound 
as  has  been  described,  and  I  saw,  I  should  not  have  thought  it 
necessary  to  resort  to  the  person  who  produced  it ;  and  I  doubt 
whether,  in  this  case,  it  would  have  led  to  any  useful  knowledge." 

In  answer  to  questions  by  the  judge,  he  said :  "  Though  I  do 
not  think  it  absolutely  necessary,  I  should  have  got  at  the  matter 
if  I  could.  I  should  think  that  the  spermaceti  ointment  would 
not  certainly  increase  the  danger  of  such  a  wound  as  that 
described  on  the  12th  of  October.  I  never  saw  such 'an  effect 
produced  by  an  ordinary  medicnl  application.  There  are  some 
constitutions  in  which  very  slight  remedies  will  produce  danger- 
ous consequences.  I  have  seen  one  person  die  of  the  bite  of  a 
leech,  and  another  by  the  sting  of  a  bee.  I  had  no  means  of 
knowing  any  thing  of  this  lady's  constitution.  I  should  believe, 
from  evidence  I  have  heard  of  the  way  in  which  the  inflam- 
mation made  progress,  that  it  proceeded  rather  from  the  nature 
of  the  application,  than  from  the  constitution  of  the  party ;  but 
it  may  have  depended  on  both.  It  is  usual  to  try  and  ascertain 
the  nature  of  the  constitution.  We  can  not  always  do  it,  but  ia 
using  potent  remedies  we  use  great  caution.  I  can  not  form  a 
positive  opinion  whether  the  liniment  was  rashly  used  or  not,  but 
the  impression  on  my  mind  is,  that  it  was  used  without  due 
caution,  and  therefore  either  ignorantly  or  rashly.  I  have  seen 
many  instances  of  an  inflammation  from  external  application,  but 
I  never  saw  so  extensive  an  effect  produced  as  in  this  instance. 

Mr.  Frankum  then  proved  that  he  saw  Mrs.  Lloyd  about  a 
week  before  her  death,  and  Mas  present  at  the  post-mortem 
examination ;  his  opinion  was  that  she  was  very  healthy,  and  that 
there  was  not,  as  far  as  he  could  judge,  any  peculiarity  of  consti- 
tution, which  would  account  for  the  violent  effects  produced. 

It  was  claimed,  on  the  part  of  the  prisoner,  that  the  facts  al- 
leged, even  admitting  them  to  be  true,  were  not  legally  established. 
Some  of  the  counts  charge  the  death  to  have  been  occasioned  by 
an  ulcer  and  sore  produced  by  an  external  application,  and  also 
by  inhaling  a  certain  noxious  vapor;  and  as  no  evidence  had 


CRIMINAL   MALPRACTICE.  229 

been  given  respecting  the  inhaling,  that  was  not  now  the  subject 
of  inquiry.  There  is  no  count  imputing  ignorance  or  want  of 
skill,  or  hastiness,  or  roughness  of  practice ;  and  therefore,  there 
being  no  allegation  of  that  kind,  no  evidence  can  be  used  to 
influence  the  jury  on  that  subject.  That  the  rules  with  respect 
to  indictments  clearly  precluded  all  evidence  to  establish  any  other 
cause  of  death  than  that  stated  in  the  indictment.  It  is  the 
mind  that  constitutes  the  individual  a  criminal,  and  not  the  act 
done.  The  indictment  charged  the  prisoner  with  the  offense  of 
manslaughter.  Manslaughter  may  be  an  offense  committed  on 
the  sudden,  in  a  moment  of  intemperate  feeling,  or  it  may  be 
caused  in  the  prosecution  of  an  illegal  act.  There  may  be  justi- 
fiable homicide,  and  homicide  per  infortunium;  and  it  is  this 
latter  kind  of  homicide  of  which  the  act  complained  of  consists. 
Where  a  man  in  an  honest  mind  does  an  act  which  he  thinks 
right  and  death  ensues,  it  is  homicide  per  infortunium.  The 
defence  of  the  prisoner  was  claimed  to  be  founded  on  Sir  Matthew 
Hale's  rule,  and  that  this  rule  was  adopted  by  all  text  writers  on 
criminal  law.  It  was  claimed  that  that  rule  was,  "  when  a  potion 
is  given  without  any  intention  of  doing  bodily  hurt,  but  with  an 
intention  to  cure  or  prevent  a  disease,  and,  contrary  to  the 
expectation,  it  produces  death,  it  is  not  manslaughter."  It  was 
said  the  prisoner  can  not  call  any  witness  to  prove  what  the 
liquid  was,  as  its  composition  is  only  known  to  himself,  etc. 

BAILEY,  B.,  after  saying  there  were  conflicting  authorities  on 
the  point  of  law  raised  by  the  defence ;  that  he  would  reserve  the 
points,  that  his  opinion  and  that  of  other  judges  were  against  the 
doctrine  advanced,  believing,  as  they  thought,  the  intention  might 
have  been  goi  d.  If  there  was  want  of  due  circumspection,  the 
prisoner  would  be  guilty  of  manslaughter.  As  to  the  indictment 
not  being  supported  by  the  evidence,  it  was  sufficient  that  it  was 
alleged  that  the  prisoner  felonously  applied  the  remedy  used. 
For,  he  said :  "  if  a  man,  either  with  gross  ignorance,  or  gross 
rashness,  administers  medicine,  and  death  ensue,  it  will  be  clearly 
felony. 


230  MALPRACTICE. 

It  was  also  claimed  by  the  defense,  that  trespass  was  the 
foundation  of  felony,  and  that  it  must  be  proved ;  but  BAILEY, 
B.,  said  in  this  case :  "  we  may  judge  of  the  thing  by  the  effect 
produced,  and  that  may  be  evidence  from  which  the  jury  may 
say  whether  the  thing  which  produced  such  an  effect  was  not 
improperly  applied,"  and  Bolland  said  :  "  when  you  pass  the  line 
which  the  law  allows,  then  you  become  a  trespasser." 

The  same  witnesses  testified,  and  essentially  the  same  things 
were  proved  as  on  the  previous  trial  of  Miss  Cashin. 

The  charge  of  BAILEY,  B.,  is  an  able  one.  lie  said :  "  The 
indictment  charges  the  prisoner,  as  having  caused  the  death  of 
Mrs.  Lloyd,  by  the  application  of  a  certain  liquid;  and  the 
points  for  your  consideration  will  be ; — first,  whether  Mrs.  Lloyd 
came  to  her  death  by  the  application  of  the  liquid ;  and,  secondly, 
whether  the  prisoner,  in  applying  it,  has  acted  feloniously  or  not; 
to  my  mind  it  matters  not  whether  a  man  has  received  a  medical 
education  or  not ;  the  thing  to  look  at  is,  whether,  in  reference- 
to  the  remedy  he  has  used,  and  the  conduct  he  has  displayed,  he 
has  acted  with  a  degree  of  caution  ;  or,  on  the  contrary,  has  acted 
with  gross  and  improper  rashness  and  want  of  caution.  I  have 
no  hesitation  in  saying  for  your  guidance,  that  if  a  man  be  guilty 
of  gross  negligence  in  attending  to  his  patient,  after  he  has  applied 
his  remedy,  or  of  gross  rashness  in  the  application  of  it,  and 
death  ensues  in  consequence,  he  will  be  liable  to  a  conviction  for 
manslaughter.  There  is  no  pretence  in  the  present  case  for  say- 
ing there  was  any  degree  of  negligence,  after  the  application  of 
the  liquid,  because  it  seems  that  the  prisoner  did  not  know 
where  Mrs.  Lloyd  lived;  and  when  he  was  sent  for  on  the  12th, 
he  went,  but  was  almost  immediately  dismissed,  and  was  not 
allowed  to  see  her  afterward.  If  you  should  be  of  opinion 
that  the  prisoner  made  the  application  with  a  culpable  degree  of 
rashness,  and  that  it  was  the  cause  of  Mrs.  Lloyd's  death,  then, 
heavy  as  the  charge  against  him  is,  he  will  be  answerable  on  this 
indictment  for  the  oflense  of  manslaughter.  There  was  a  con- 
siderable interval  between  the  application  of  the  liquid  and  the 


CRIMINAL   MA1J>RACTICE.  231 

death  of 'the  patient;  yet  if  you  think  that  the  infliction  of  the 
wound  on  the  10th  of  October,  was  the  cause  of  the  death,  then 
it  is  no  answer  to  say  that  a  different  course  of  treatment  by  Mr. 
Campbell  might  have  prevented  it.  You  will  consider  these  two 
points — first,  of  what  did  Mrs.  Lloyd  die  ?  You  must  be  satis- 
fied th:it  she  died  of  the  wound  which  was  the  result  of  the  ap- 
plication made  on  the  10th  October;  and  then,  secondly,  if  you 
are  satisfied  of  this,  whether  the  application  was  a  felonious  ap- 
plication ?  This  will  depend  upon  whether  you  think  it  was  gross 
and  culpable  rashness  in  the  prisoner  to  apply  a  remedy  which 
might  produce  such  effects,  in  such  a  manner  that  it  did  actually 
produce  them.  If  you  think  so,  then  he  will  be  answerable  to 
the  full  extent." 

The  verdict,  in  this  case  was  not  guilty. 

These  cases  have  been  given  at  some  considerable  length,  be- 
cause they  contain  the  principles  upon  which  this  class  of  cases 
have  heretofore  been  considered  and  decided  in  England.  They 
have  been  the  cases  to  which  American  judges  have  referred,  and 
by  which  they  have  been  guided.  They  have  generally  been 
followed.  There  is  no  doubt  that  a  greater  degree  of  skill  and 
general  qualification  is  required  at  the  present  day,  at  the  hands 
of  the  professional  man,  than  formerly.  He  must  bring  to  the 
accomplishment  of  what  he  undertakes  a  reasonable  degree  of 
skill,  considering  the  advancement  and  improvements  of  science. 


CHAPTER  XV. 

CRIMINAL  MALPRACTICE— AMERICAN  ADJUDICATED  CASES,  ETC. 
COMMONWEALTH  t>.  SAMUEL  THOMPSON;  6  Mass.  Reports,  134. 

Tins  is  the  leading  American  case  on  Criminal  Malpractice. 

In  this  case,  most  of  the  elements  of  Willful  Malpractice  are 
distinctly  and  ably  set  forth  by  the  able  Chief-Justice  Theophilus 
Parsons.  It  will  be  necessary  to  give  the  case  in  detail,  that  its 
points  may  be  well  understood. 

"  At  the  beginning  of  the  term  the  prisoner  (Thompson,)  was 
indicted  for  the  willful  murder  of  Ezra  Lovett,  by  giving  him  a 
poison  called  lobelia,  on  the  ninth  day  of  January  last,  of  which 
he  died  the  next  day.  On  the  20th  of  December,  at  an  adjourn- 
ment of  this  term,  the  prisoner  was  tried  for  this  offense,  before 
the  Chief- Justice  and  the  Judges  Sewall  and  Parker. 

On  the  trial  it  appeared  in  evidence  that  the  prisoner,  some 
time  in  the  preceding  December,  came  into  Beverley,  where  the 
deceased  then  lived,  announcing  himself  as  a  physician,  and  pro- 
fessed an  ability  to  cure  all  fevers,  whether  black,  grey,  green  or 
yellow ;  declaring  that  the  country  was  imposed  upon  by  physi- 
cians, who  were  all  wrong  if  he  was  right.  He  possessed  several 
drugs,  which  he  used  as  medicine,  and  to  which  he  gave  singular 
names.  One  he  called  "coffee,"  another,  "well-my-gristle,"  and 
a  third  "ram-cats."  He  had  several  patients  in  Beverley  and  in 
Salem,  previous  to  Monday,  the  2d  of  January,  when  the  deceased, 
having  been  for  several  days  confined  to  his  house  by  cold, 
requested  that  the  prisoner  might  be  sent  for  as  a  physician. 

He  accordingly  came,  and  ordered  a  large  fire  to  be  kindled, 
to  heat  the  room.  He  then  placed  the  feet  of  the  deceased,  with 

(232) 


CRIMINAL    MALPRACTICE.  233 

his  shoes  off,  on  a  stove  of  hot  coals,  and  wrapped  him  in  a  thick 
blanket,  covering  his  head.  In  this  situation  he  gave  him  a 
powder  in  water,  which  immediately  vomited  him.  Three  minutes 
after  he  repeated  the  dose,  which,  in  two  minutes,  operated  vio- 
lently ;  he  again  repeated  the  dose,  which  soon  operated  with  still 
greater  violence.  These  doses  were  all  given  within  the  space  of 
half  an  hour ;  the  patient  in  the  meantime  drinking  copiously  of 
a  warm  decoction,  called  by  the  prisoner  coffee.  The  deceased, 
after  vomiting  up  phlegm,  but  no  food,  was  ordered  to  a  warm 
bed.  and  appeared  to  be  comfortable,  complaining  of  debility ; 
and  in  the  afternoon  he  was  visited  by  the  prisoner,  who  admin- 
istered two  more  of  his  emetic  powders  in  succession,  which  vomited 
the  dece  ised,  who,  during  the  operation,  drank  of  the  prisoner's 
coffee,  and  complained  of  much  distress.  On  Wednesday  morn- 
ing the  prisoner  came,  and,  after  causing  the  face  and  hands  of 
the  deceased  to  be  washed  in  rum,  ordered  him  to  walk  in  the  air, 
which  he  did  for  about  fifteen  minutes.  In  the  afternoon  the 
prisoner  gave  him  two  more  of  his  emetic  powders,  with  draughts 
of  his  coffee.  On  Thursday  the  deceased  appeared  to  be  com- 
fortable, but  complained  of  great  debility.  In  the  afternoon  the 
prisoner  caused  him  to  be  again  sweated,  by  placing  him,  with 
another  patient,  over  an  iron  pan,  with  vinegar,  covering  them  at 
the  same  time  with  blankets.  On  Friday  and  Saturday  the  pris- 
oner did  not  visit  the  deceased,  who  appeared  to  be  comfortable, 
although  complaining  of  increased  debility.  On  Sunday,  the 
debility  increasing,  the  prisoner  was  sent  for,  and  came  in  the 
afternoon,  when  he  administered  another  of  the  emetic  powders, 
following  it  with  his  coffee,  which  vomited  the  deceased,  causing 
him  much  distress.  On  Monday  he  appeared  comfortable,  but 
with  increasing  weakness,  until  evening,  when  the  prisoner  visited 
him,  and  administered  to  him  another  of  his  emetic  powders,  and 
in  about  twenty  minutes  repeated  the  dose.  This  last  dose  did 
not  operate.  The  prisoner  then  administered  pearlash,  mixed  with 
water,  and  afterward  repeated  his  emetic  potions.  The  deceased 
appeared  to  be  in  great  distress,  and  said  he  was  dying.  The 


234  MALPRACTICE. 

prisoner  then  asked  him  how  far  the  medicine  had  got  down ;  the 
deceased,  laying  his  hand  on  his  breast,  answered,  "  Here ;"  to 
which  the  prisoner  observed,  "  The  medicine  would  soon  get  down 
and  unscrew  his  navel " — meaning,  as  was  supposed  by  his  hearers, 
that  it  would  operate  as  a  cathartic.  Between  nine  and  ten 
o'clock  in  the  evening,  the  deceased  lost  his  reason,  and  was 
seized  with  convulsive  fits — two  men  being  required  to  hold  him 
in  bed.  After  he  was  seized  with  convulsions,  the  prisoner  got 
down  his  throat  one  or  two  doses  of  his  emetic  powder,  and 
remarked  to  the  father  of  the  deceased,  that  his  son  had  got  the 
hyps  like  the  devil,  but  that  his  medicines  would  fetch  him  down — 
meaning,  as  the  witness  understood,  would  compose  him.  The 
next  morning  the  regular  physician  of  the  town  was  sent  for; 
but  the  patient  was  so  completely  exhausted  that  no  relief  could 
be  given.  The  convulsions  and  the  loss  of  reason  continued, 
with  some  intervals,  until  Tuesday  evening,  when  the  deceased 
expired. 

From  the  evidence  it  appeared  that  the  coffee  administered  was 
a  decoction  of  marsh  rosemary,  mixed  with  the  bark  of  bayberry- 
bush,  which  was  not  supposed  to  have  injured  the  deceased.  But 
the  powders,  which  the  prisoner  said  he  principally  relied  upon  in 
his  practice,  which  was  the  emetic  so  often  administered  by  the 
defendant,  was  the  plant  called  Indian  tobacco. 

The  Solicitor-General  also  stated,  that  before  the  deceased  had 
applied  to  the  prisoner,  the  latter  had  administered  the  like  med- 
icines with  those  given,  to  several  of  the  patients,  who  had  died 
under  his  hands ;  and  to  prove  this  statement  he  called  several 
witnesses,  of  whom  but  one  appeared.  He,  on  the  contrary,  tes- 
tified that  he  had  been  the  prisoner's  patient  for  an  oppression  in 
the  stomach ;  that  he  took  his  emetic  powders  several  times,  in 
three  or  four  days,  and  was  relieved  from  his  comp'aint,  which  had 
not  since  returned ;  and  there  was  no  evidence  in  the  case  that 
the  prisoner,  in  the  course  of  his  very  novel  practice,  had  expe- 
rienced any  fatal  accident  among  his  patients. 

The  defense  stated  by  the  prisoner's  counsel  was,  that  he  had, 


CRIMINAL   MALPRACTICE.  235- 

for  several  years,  and  in  different  places,  pursued  his  practice 
with  much  success,  and  the  death  of  the  deceased  was  unexpected, 
and  could  not  be  imputed  to  him  as  a  crime.  But  the  court  were 
satisfied  that  the  evidence  produced  on  the  part  of  the  common- 
wealth did  not  support  the  indictment.  The  prisoner  was  not 
put  on  his  defense. 

The  Chief-Justice  charged  the  jury ;  and  the  substance  of  his 
direction,  and  several  expressions  that  fell  from  the  court  during 
the  trial,  are,  for  greater  convenience,  here  thrown  together. 

PARSONS,  C.  J. — As  the  testimony  of  the  witnesses  was  not  con- 
tradicted, nor  their  credit  impeached,  it  might  be  considered  as 
containing  the  necessary  facts,  on  which  the  issue  must  be  found. 

That  the  deceased  lost  his  life  by  the  unskillful  treatment  of 
the  prisoner,  did  not  seem  to  admit  of  a  reasonable  doubt;  but 
of  this  the  jury  were  to  be  the  judges.  Before  the  Monday 
evening  previous  to  the  death  of  Lovett,  he  had,  by  profuse 
sweats,  and  by  often-repeated  doses  of  the  emetic  powders,  been 
reduced  very  low.  In  this  state,  on  that  evening,  other  doses  of 
this  Indian  tobacco  were  administered.  When  the  second  potion 
did  not  operate,  probably  because  the  tone  of  his  stomach  was- 
destroyed,  the  repetition  of  them,  that  they  might  operate  as  a 
cathartic,  was  followed  by  convulsions,  loss  of  reason  and  death. 

But  whether  this  treatment,  by  which  the  deceased  lost  his  lifer 
is  or  is  not  felonious  homicide,  is  the  great  question  before 
the  jury. 

To  constitute  the  crime  of  murder,  with  which  the  prisoner  was 
charged,  the  killing  must  have  been  with  malice,  either  expressed 
or  implied.  There  was  no  evidence  to  induce  the  belief  that  the 
prisoner,  by  this  treatment,  intended  to  kill  or  injure  the  de- 
ceased, and  the  ground  of  express  malice  must  fail.  It  has  been 
said  that  implied  malice  may  be  inferred  from  the  rash  and  pre- 
sumptuous conduct  of  the  prisoner,  in  administering  such  violent 
medicines.  Before  implied  malice  can  be  inferred,  the  jury  must 
be  satisfied  that  the  prisoner,  by  his  treatment  of  his  patient,  was 
willfully  regardless  of  his  social  duties,  being  determined  on  mis- 


236  MALPRACTICE. 

chief.  But  there  is  no  part  of  the  evidence  which  proves  that  the 
prisoner  intended,  by  his  practice,  any  harm  to  the  deceased. 
On  the  contrary,  it  appears  that  his  intention  was  to  cure  him. 
The  jury  would  consider  whether  the  charge  of  murder  was,  on 
these  principles,  satisfactorily  supported. 

But  though  innocent  of  the  crime  of  murder,  the  prisoner, 
-on  this  indictment,  may  be  convicted  of  manslaughter,  if  the 
evidence  be  sufficient;  and  the  Solicitor-General  strongly  urged 
that  the  prisoner  was  guilty  of  manslaughter,  because  he  rashly 
and  presumptuously  administered  to  the  deceased  a  deleterious 
medicine,  which,  in  his  hands,  by  reason  of  his  gross  ignorance; 
became  a  deadly  poison. 

The  prisoner's  ignorance  in  the  case  is  very  apparent.  On  any 
other  ground  consistent  with  his  innocence,  it  is  not  easy  to  con- 
ceive that,  on  the  Monday  evening  before  the  death,  when  the 
.second  dose  of  his  powerful  emetic  had  failed  to  operate,  through 
the  extreme  weakness  of  the  deceased,  he  could  expect  a  repeti- 
tion of  these  fatal  poisons  would  prove  a  cathartic,  and  relieve  the 
patient ;  or  that  he  could  mistake  convulsive  fits,  symptomatic  of 
.approaching  death,  fora  hypochondriac  af lection.  But,  on  consid- 
ering this  point,  the  court  were  all  of  the  opinion,  notwithstanding 
this  ignorance,  that  if  the  prisoner  acted  with  an  honest  intention, 
and  expectation  of  curing  the  deceased  by  this  treatment,  although 
death  was  the  result  unexpected  to  him,  he  was  not  guilty  of 
manslaughter. 

To  constitute  manslaughter,  the  killing  must  have  been  the 
consequence  of  some  unlawful  act.  Now,  there  is  no  law  which 
prohibits  any  man  from  prescribing  for  a  sick  person  with  his 
consent ;  and  it  is  not  a  felony  if,  through  his  ignorance  of  the 
quality  of  the  medicine  prescribed,  or  of  the  nature  of  the  dis- 
ease, or  of  both,  the  patient,  contrary  to  his  expectation,  should 
die.  The  death  of  a  man,  killed  by  voluntarily  following  a  med- 
ical prescription,  can  not  be  adjudged  felony  in  the  party  pre- 
scribing, unless  he,  however  ignorant  of  medical  science  in 
general,  had  so  much  knowledge,  or  probable  information  of  the 


CRIMINAL   MALPRACTICE.  237 

fatal  tendency  of  the  prescription,  that  it  may  be  reasonably  pre- 
sumed by  the  jury  to  be  the  effect  of  willful  rashness,  at  the 
least,  and  not  of  an  honest  intention  and  expectation  to  cure. 

In  the  present  case  there  is  no  evidence  that  the  prisoner, 
either  from  his  own  experience  or  from  the  information  of  others, 
hud  any  knowledge  of  the  fatal  effects  of  the  Indian  tobacco, 
when  injudiciously  administered;  but  the  only  testimony  pro- 
duced on  that  point  proved  that  the  patient  found  a  cure  from 
the  medicine. 

The  law,  thus  stated,  was  conformable,  not  only  to  the  general 
principles  which  governed  in  charges  of  felonious  homicide,  but 
also  to  the  opinion  of  the  learned  and  excellent  Lord  Chief-Justice 
Hale.  He  expressly  states  that  if  a  physician,  whether  licensed 
or  not,  gives  a  person  a  potion  without  any  intent  of  doing  him, 
any  bodily  hurt,  but  with  intent  to  cure  or  prevent  disease,  and, 
contrary  to  the  expectation  of  the  physician,  it  kills  him,  he  is  not 
guilty  of  murder  or  manslaughter. 

If,  in  this  case,  it  had  appeared  in  evidence,  as  was  stated  by 
the  Solicitor- General,  that  the  prisoner  had,  in  administering  this 
Indian  tobacco,  experienced  its  injurious  effects,  in  the  death  or 
bodily  hurt  of  his  patient,  and  that  he  afterward  administered  it 
in  the  same  form  to  the  deceased,  and  he  was  killed  by  it,  the 
court  would  have  left  it  to  the  serious  consideration  of  the  jury, 
whether  they  would  presume  the  prisoner  administered  it  from 
an  honest  intention  to  cure,  or  from  obstinate  rashness  and  fool- 
hardy presumption,  although  he  might  not  have  intended  any 
bodily  harm  to  his  patient.  If  the  jury  should  have  been  of  this 
latter  opinion,  it  would  have  been  reasonable  to  have  convicted 
the  prisoner  of  manslaughter,  at  least ;  for  it  would  not  have  been 
lawful  for  him  again  to  have  administered  the  medicine,  of  which 
he  had  such  fatal  experience. 

It  is  to  be  exceedingly  lamented  that  people  are  so  easily  per- 
suaded to  put  confidence  in  these  itinerant  quacks,  and  to  trust 
their  lives  to  strangers  without  knowledge  or  experience.  If  this 
astonishing  infatuation  should  continue,  and  men  are  found  to 


238  MALPRACTICE. 

yield  to  the  impudent  pretensions  of  ignorant  empiricism,  there 
seems  to  be  no  adequate  remedy  by  a  criminal  prosecution,  with- 
out the  interference  of  the  Legislature,  if  the  quack,  however 
weak  and  presumptuous,  should  prescribe,  with  honest  intentions 
and  expectations  of  relieving  his  patients. 

The  prisoner  was  acquitted." 

In  this  case  there  can  be  no  doubt,  as  stated  by  the  court,  that 
Thompson  killed  his  patient ;  yet  the  common  law,  in  the  opinion 
of  the  court,  affording  no  punishment,  statutory  law  must  come 
in  to  supply  a  remedy,  if  one  is  afforded  at  all.  This  case,  going 
off  as  it  did,  aroused  the  people  of  Massachusetts,  and  the  Legis- 
lature immediately  passed  a  law  making  it  illegal  for  any  person 
to  practice  medicine  or  surgery  without  being  duly  qualified.  Had 
such  a  law  existed  when  the  above  case  was  tried,  Thompson 
would  probably  have  been  convicted  of  manslaughter,  because — 
although  he  was  trying  to  cure  his  patient — being  engaged  in  an 
illegal  business,  he  would  have  been  criminally  responsible,  under 
the  rule  of  the  common  law,  that  when  death  occurs  by  the  act 
.of  one  who  is  in  pursuit  of  an  unlawful  design,  or  doing  an 
illegal  thing,  without  any  intention  to  kill,  it  is  a  felony. 

So,  where  a  physician  was  indicted  for  the  murder  of  a  person 
who  had  died  of  small-pox,  communicated  by  him  to  his  patient, 
whom  he  had  inoculated,  and  was  convicted  of  manslaughter,  it 
was  held,  on  a  motion  for  a  new  trial,  that  as  the  physician  did 
not  appear  to  have  designed  the  death  of  the  deceased,  the  in- 
dictment was  fatally  defective.1 

The  learned  Judge  Parsons,  in  the  Thompson  case,  held  doc- 
trine contrary  to  that  laid  down  by  the  English  courts,  in  the 
cases  of  Nancy  Simpson,  Wilcox,  227 ;  Spiller,  5  Car.  &  P.  335 ; 
Furguson,  Lewin,  131 ;  Senior,  1  Mood.  405  ;  Tessymond,  Lewin, 
C.  C.  169;  Williamson,  3  Car.  &  P.  635;  Van  Butchell,  3 
Camp.  629 ;  Long,  4  C.  &  P.  435,  398 ;  Webb.,  1  M.  &  R.  405. 


1  Fairlee  v.  The  People,  11  111.  1.    See,  also,  Rice  v.  State,  8  Miss.  561 ;  Holmes 
v.  Slate,  23  Ala.  17. 


CRIMINAL   MALPRACTICE.  239 

In  these  cases,  it  was  held,  if  there  was  gross  ignorance,  careless- 
ness, negligence  or  rashness,  in  any  one  who  undertakes  to  ad- 
minister medicine,  without  any  intent  to  do  harm,  it  amounted  to 
manslaughter. 

Judge  Denio  holds  the  same  doctrine  in  the  case  of  Thomas 
v.  Winchester,  2  Selclen,  409. 

It  will  be  seen  from  the  cases  given,  that  there  has  been  some 
vacillation  in  the  courts,  as  to  the  rule  to  be  applied  to  medical 
men  in  cases  of  alleged  Criminal  Malpractice.  The  original  rule 
being,  that  if  a  medical  man  gave  to  his  patient  medicine  to  help 
Mm,  and  the  result  was  that  it  killed  him,  "it  was  neither  murder 
nor  manslaughter,  bat  misadventure."  Afterward  it  was  held 
that  if  the  physician  or  surgeon  was  not  regularly  educated  or 
appointed,  who  caused  the  death,  though  unintentionally,  it  was 
manslaughter  at  least.  Then  it  was  held  "  that  the  prisoner  must 
have  been  guilty  of  criminal  misconduct,  arising  either  from 
the  grossest  ignorance,  or  the  most  criminal  inattention,"  to 
sustain  the  charge  of  manslaughter.  At  this  time  the  rule  may 
be  considered  that  laid  down  by  Boland,  B.,  in  the  Spiller  case,1 
where  the  prisoner  was  indicted  for  manslaughter,  by  causing  the 
death  of  a  child,  by  putting  a  plaster,  made  of  corrosive  and  dan- 
gerous ingredients,  upon  its  head ;  it  appearing  that  the  child,  for 
eighteen  months,  had  been  afflicted  with  scald  head,  and  was 
taken  to  the  defendant,  who  applied  two  plasters,  successively,  all 
over  its  head.  Two  surgeons  proved  there  was  a  general  slough- 
ing of  the  scalp,  which  caused  the  death,  and  in  their  opinion, 
this  might  have  been  produced  by  the  plasters ;  there  was  no 
evidence  to  show  of  what  the  plasters  were  composed. 

BOLAND,  B.,  said :  The  law,  as  I  am  bound  to  lay  it  down, — 
and  I  believe  I  lay  it  down  as  it  has  been  agreed  upon  by  the 
judges;  for  cases  of  this  kind  have  occurred  of  late  more  fre- 
quently than  in  former  times, — is  this :  if  any  person,  whether  a 
regular  or  irregular  medical  man,  professes  to  deal  with  life  or 

1  Rex  v.  Spiller,  5  Car.  &  P.  333. 


240  MALPRACTICE. 

health  of  His  Majesty's  subjects,  he  is  bound  to  have  competent 
skill  to  perform  the  task  that  he  holds  himself  out  to  perform ; 
and  he  is  bound  to  treat  his  patients  with  care,  attention  and 
assiduity."  The  court  here  undoubtedly  means,  that  the  medical 
man  must  be  able  to  do  all  he  promises  to  do,  or  all  that  he  in- 
duces his  patients  to  believe  he  can  perform. 

So  in  the  Ferguson  case,  it  was  held,  COLERIDGE,  J.,  that  no 
man  was  justified  in  making  use  of  an  instrument,  in  itself  a 
dangerous  one,  unless  he  did  so  with  proper  skill  and  caution. 
If  the  jury  thought  that  in  this  instance  the  prisoner  had  used 
the  instrument  with  gross  want  of  skill  or  gross  want  of  caution, 
and  that  the  deceased  thereby  lost  her  life,  it  would  be  their  duty 
to  find  the  prisoner  guilty. 

So  in  another  case,  where  the  prisoner  was  indicted  for  man- 
slaughter, in  causing  the  death  of  R.  R.,  by  administering  to  her  a 
large  quantity  of  Morrison's  pills, — the  deceased,  being  ill  of  small- 
pox, had  sent  for  the  prisoner,  and  under  his  advice  had  taken  large 
quantities  of  them,  from  time  to  time,  till  death  occurred.  Several 
medical  men  testified,  that  medicine  of  the  severity  of  the  pills 
could  not  be  given  in  such  quantities  without  accelerating  death. 

Lord  LYNDHURST,  C.  B.,  held  :  When  proper  medical  assistance 
can  be  had,  a  person  totally  ignorant  of  the  science  of  medicine, 
takes  on  himself  to  administer  a  violent  and  dangerous  remedy 
to  one  laboring  under  disease,  and  death  ensues  in  consequence 
of  that  dangerous  remedy  having  been  so  administered,  then  he 
is  guilty  of  manslaughter.1 

A  medical  man  can,  of  course,  in  no  case,  violate  the  person 
of  his  patient,  under  the  pretense  that  he  was  thereby  treating 
her  medicinally,  for  the  complaint  for  which  he  was  then  attending 
her,  even  though  she  makes  no  resistance,  and  positively  con- 
sents, owing  solely  to  the  bona  fide  belief  that  it  was  necessary. 
This  outrageously  criminal  practice  has,  on  several  occasions,  been 
attempted.  The  following  is  the  leading  case  : 

1  Rex  v.  Webb,  1  M.  &  Rob.  405  ;  2  Lew.  196. 


CRIMINAL   MALPRACTICE.  241 

THE  QUEEN  ?.  WILLIAM  CASE ;   5  British  Crown  Cases,  587. 

In  this  case,  tried  at  the  April  Quarter  Sessions,  A.  D., 
1850,  the  defendant's  counsel,  in  his  address  to  the  jury, 
contended  that  the  girl  was  a  consenting  party,  and,  there- 
fore, the  charge  of  assault  could  not  be  sustained.  The  Recorder 
told  the  jury  that  the  girl  was  of  an  age  to  consent  to  a 
man  having  carnal  connection  with  her,  and  that  if  they  thought 
she  consented  to  such  connection  with  the  defendant,  then  he 
ought  to  be  acquitted ;  but  that  if  they  were  satisfied  she  was 
ignorant  of  the  nature  of  the  defendant's  act,  and  made  no  resist- 
ance, solely  from  a  bonafide  belief  that  the  defendant  was,  as  he 
represented,  treating  her  medicinally,  with  a  view  to  her  case,  his 
conduct,  in  point  of  law,  amounts  to  an  assault. 

The  jury  found  the  defendant  guilty,  and  he  was  sentenced  to 
be  imprisoned  eighteen  calendar  months  in  the  jail. 

The  Recorder  reserved  for  the  highest  criminal  court  in  Eng- 
land, the  question,  whether  his  direction  was  correct  in  point 
of  law. 

The  case  was  argued  on  the  1st  of  June,  1850.  It  was 
claimed  for  the  prisoner — First,  That  on  the  case,  as  stated,  the 
jury  could  not  be  taken  to  have  found  an  assault,  because  they 
were  directed  to  find  him  guilty,  if  they  thought  the  girl  made 
no  resistance;  that  no  resistance  was  equivalent  to  consent; 
that  if  where  there  was  consent  there  was  no  assault.  (Reed's 
case,  1.)  That  it  was  clear  that  she  consented  to  the  mechanical 
act  of  connection;  and,  therefore,  the  prisoner  did  not  do  it 
against  her  will.  In  Reed's  case  it  was  found  that  the  girl  con- 
sented in  fact,  though,  from  her  tender  age,  she  did  not  know 
what  she  was  about.  Secondly,  If  she  did  not  consent,  it  was  a 
rape ;  for  there  can  be  no  distinction,  in  principle,  between  a  dis- 
sent which  makes  a  connection  an  assault,  and  a  dissent  which 
makes  it  a  rape:  fraud  and  force  stood  on  the  same  footing. 

WILDE,  C.  J.,  said  this  case  is  free  from  doubt.  The  finding  of 
the  jury  is  clear.  They  are  told  that  if  they  think  she  con- 
sented to  the  carnal  connection,  they  must  acquit ;  that  the  girl 
16 


242  MALPRACTICE. 

was  competent  to  consent,  and  that  it  is  a  question  for  them  to 
say  whether  she  did  so  or  not.  This  is  said  to  be  qualified  by 
what  follows,  viz.:  that  if  they  thought  she  made  no  resistance, 
solely  because  she  thought  the  prisoner  was  treating  her  med- 
icinally, they  should  convict  of  an  assault.  I  do  not  see  that 
this  is  any  qualification;  it  is  strictly  correct  direction.  The 
girl  was  fourteen  years  old.  She  might,  at  that  age,  be  ignorant 
of  the  nature  of  the  act,  morally  as  well  as  physically,  and  of  its 
possible  consequences.  It  is  said  she  made  no  resistance,  and, 
therefore,  she  must  be  viewed  as  a  consenting  party.  This  is  a 
fallacy.  Children  who  go  to  a  dentist  make  no  resistance,  but 
they  are  not  consenting  parties.  The  prisoner  disarmed  her  by 
fraud.  She  acquiesced  under  a  misrepresentation  that  what  he 
was  doing  was  with  a  view  to  cure  her,  and  that  only ;  whereas  it 
was  done  solely  to  gratify  the  passion  of  the  prisoner.  How 
does  this  differ  from  a  case  of  total  deception  ?  She  consented 
to  one  thing :  he  did  another  materially  different,  on  which  she  had 
been  prevented,  by  fraud,  from  exercising  her  judgment  and  will. 
The  cases  which  have  been  referred  to,  show  that  where  consent  is 
caused  by  fraud,  the  act  is,  at  least,  an  assault,  and,  perhaps,  may 
amount  to  a  rape.  It  has  been  suggested  that  were  the  act  of 
the  prisoner  to  be  regarded  in  the  light  of  medical  treatment,  it 
would  be  no  offense,  and  that  it  was  not  left  to  the  jury  whether 
the  prisoner  did  not  intend  it  as  such.  That  certainly  was  not 
left  to  the  jury,  nor  need  have  been.  The  notion  that  a  medical 
man  might  lawfully  adopt  such  a  course  of  treatment  is  not  to  be 
tolerated  in  a  court  of  justice. 

ALDERSON,  B. — The  case  seems  quite  undistinguishable  from 
those  in  which  it  has  been  held,  that  if  a  man  possesses  himself 
of  a  woman's  person  by  fraud,  it  is  equivalent  to  force.  The 
objection  that  it  amounted  to  rape  was  not  taken. 

COLERIDGE,  J. — The  jury  have  found  that  the  prisoner  got  pos- 
session of  the  girl's  person  by  fraud :  so  the  act  is  an  assault. 
It  must  not  be  assumed  that  the  case  would  be  different,  even 
had  they  found  that  the  prisoner  intended  it  as  medical  treatment 


CHAPTER  XVI. 

ABORTION— FCETICIDE. 

MEDICALLY  and  technically,  abortion  consists  in  the  separation 
and  expulsion  of  the  immature  ovum  from  the  uterus.  At  first, 
the  attachment  between  the  mother  and  the  foetus,  at  the  points 
of  connection  between  the  chorion  and  decidua,  is  very  slight. 
Afterward  the  connection  becomes  stronger  and  more  intimate, 
and  the  separation  more  difficult. 

W.  Tyler  Smith,  a  late  English  writer  of  high  authority  upon 
obstetrics,  defines  abortion,  "  as  the  premature  expulsion  of  the 
ovum  at  any  time  after  it  become  viable,  and  before  the  twenty- 
seventh  or  twenty-eighth  week  of  pregnancy.  Up  to  the  latter 
date,  the  foetus  is  not  viable ;  but  after  the  completion  of  the 
sixth  month,  it  may  with  care  be  reared."1  The  discharge  of 
the  ovum  between  the  second  and  the  twenty-eighth  week,  has 
been  termed  a  miscarriage,  still  it  is  convenient  and  proper  to 
consider  all  expulsions  of  the  ovum,  previous  to  the  time  at 
which  the  foetus  become  viable,  under  the  head  of  abortion. 

The  natural  causes  of  abortion,  or  the  premature  expulsion 
of  the  foetus  from  the  uterus,  are  numerous.  Disease,  in  all  its 
forms,  is  a  great  and  fruitful  cause  of  abortion.  Some  women, 
for  this  or  other  reasons,  throw  off  the  ovum  or  embryo  with 
great  facility,  while  in  others  abortion  can  not  be  produced  without 
greatly  endangering  life.  It  is  in  these  latter  cases  that  courts 
are  most  frequently  called  upon  to  investigate  the  matter. 

There  is  no  absolute  and  positive  specific  for  effecting  this 
result,  though  the  general  supposition  among  women  is,  that 
physicians  have  the  agents  by  which  it  can  surely  be  brought 

i  A  Manual  of  Obstetrics ;  London  Edition,  1858,  p.  137. 

1*9) 


244  MALPRACTICE. 

about  medicinally.  While  the  ergot  has  an  undoubted  specific 
effect  upon  the  uterus,  it  can  not  be  depended  upon  to  produce 
abortion.  Probably,  in  the  majority  of  cases,  premature  labor 
may  be  induced  by  it.  Savin  and  the  oil  of  tansy,  also  have  the 
reputation  of  being  effectual  in  this  respect ;  still  they  have  no 
direct  effect,  like  ergot,  upon  the  fibers  of  the  uterus.  They  are 
stimulant  poisons,  and  as  such,  will  sometimes  produce  abortion. 
So  great  is  the  reputation  of  these  drugs  as  abortives,  and  being 
of  no  value  as  medicines,  it  may  be  safely  concluded  that  when 
taken  the  purpose  is  to  produce  abortion.  Purgative  medicines 
are  very  generally  resorted  to  with  success  for  this  purpose.  The 
primary  action  is  on  the  bowels,  but  the  secondary  effect  upon 
the  uterus  is  often  sufficiently  powerful  to  dislodge  the  foetus. 

Mechanical  means  through  the  vagina  is  common;  either  by 
violence  to  the  body  of  the  uterus,  its  neck,  or  by  rupturing  the 
membranes.  Of  course,  this  is  attended  with  great  danger. 
Difficult,  dangerous  and  delicate,  as  the  operation  is,  of  rupturing 
the  membranes,  yet  it  is  not  unfrequently  attempted  by  the 
mother  herself.  It  is  a  dangerous  experiment  when  attempted 
by  the  most  skillful  anatomist,  who  has  every  advantage,  from  his 
knowledge  of  the  parts,  calmness,  and  position ; — what  then  must 
it  be  when  attempted  by  an  ignorant  excited  mother,  operating 
upon  herself! 

That  the  evil  of  producing  abortion  is  a  more  serious  one 
than  legislators  and  jurists  seem  to  suppose,  there  can  be  no 
doubt.  There  is  a  defective  moral  sense  upon  the  subject.  It 
is  not  looked  upon  as  it  should  be  except  by  the  few. 

Prof.  Hugh  L.  Hodge,  of  Philadelphia,  in  an  introductory 
lecture  on  Criminal  Abortion,  sets  forth  the  importance  of  the 
evil  in  its  proper  light,  and  with  great  force.  He  says :  "  We 
blush  while  we  record  the  fact,  that  in  this  country,  in  our  own 
cities  and  towns;  in  this  city,  where  literature,  science,  morality 
and  Christianity  are  supposed  to  have  so  much  influence ;  where  all 
the  domestic  and  social  virtues  are  reported  as  being  in  full  and 
delightful  exercise ;  even  here,  individuals,  male  and  female,  exist, 


ABORTION F(ETICIDE.  245 

who  are  continually  imbruing  their  hands  and  consciences  in  the 
blood  of  unborn  infants ;  yea,  even  medical  men  are  to  be  found, 
who  for  the  trifling  pecuniary  recompense,  will  poison  the  fountain 
of  life,  or  forcibly  induce  labor,  to  the  certain  destruction  of  the 
foetus,  and  not  unfrequently  of  the  parent. 

So  low,  gentlemen,  is  the  moral  sense  of  the  community  on 
this  subject ;  so  ignorant  are  the  greater  number  of  individuals, 
that  even  mothers,  in  many  instances,  shrink  not  from  the  com- 
mission of  this  crime,  but  will  voluntarily  destroy  their  own 
progeny,  in  violation  of  every  natural  sentiment,  and  in  opposi- 
tion to  the  laws  of  God  and  man.  Perhaps  there  are  few  indi- 
viduals in  extensive  practice  as  obstetricians,  who  have  not  had 
frequent  applications  made  to  them  by  the  fathers  or  mothers  of 
unborn  children — respectable  and  polite  in  their  general  appear- 
ance and  manners — to  destroy  the  fruit  of  illicit  pleasure,  under 
the  vain  hope  of  preserving  their  reputation  by  this  unnatural 
and  guilty  sacrifice. 

Married  women  also,  from  the  fear  of  labor,  from  indisposition 
to  have  the  care,  the  expense,  or  the  trouble  of  children,  or  some 
other  motive  equally  trifling  and  degrading,  have  solicited  that 
the  embryo  should  be  destroyed  by  their  medical  attendant. 
And  when  such  individuals  are  informed  of  the  nature  of  the 
transaction,  there  is  an  expression  of  real  or  pretended  surprise, 
that  any  one  should  deem  such  an  act  improper — much  more, 
guilty;  yea,  in  spite  even  of  the  solemn  warning  of  the  physi- 
cian, they  will  resort  to  the  debased  and  murderous  charlatan,  who 
for  a  piece  of  silver,  will  annihilate  the  life  of  the  foetus,  and 
endanger  even  that  of  the  ignorant  and  guilty  mother. 

This  low  estimate  of  the  importance  of  foetal  life  is  by  no 
means  restricted  to  the  ignorant  or  to  the  lower  classes  of  society. 
Educated,  refined  and  fashionable  women — yea,  in  many  instances, 
women  whose  moral  character  is,  in  other  respects,  without  re- 
proach ;  mothers  who  are  devoted,  with  an  ardent  and  self-denying 
affection,  to  the  children  who  already  constitute  their  family,  are 
perfectly  indifferent  respecting  the  foetus  in  the  uterus.  They 


246  MALPRACTICE. 

seem  not  to  realize  that  the  being  within  them  is  indeed  animate — 
that  it  is,  in  verity,  a  human  being — body  and  spirit ;  that  it  is 
of  importance,  that  its  value  is  inestimable,  having  reference  to 
this  world  and  the  next.  Hence,  they  in  every  way  neglect  rrs 
interests.  They  eat  and  drink ;  they  walk  and  ride ;  they  will 
practice  no  self-restraint,  but  will  indulge  every  caprice,  every 
passion,  utterly  regardless  of  the  unseen  and  unloved  embryo. 
They  act  with  as  much  indifference  as  if  the  living,  intelligent, 
and  immortal  existence  lodged  within  their  organs,  were  of  no 
more  value  than  the  bread  eaten,  or  the  common  excretions  of 
the  system.  Even  in  cases  where  mothers  have  sullered  from 
repeated  abortions,  where  foetus  after  fo3tus  has  perished  through 
their  neglect  or  carelessness,  and  when  even  their  own  health  is 
involved  in  the  issue,  even  in  such  cases,  every  obstetrician  can 
bear  testimony  to  the  great  difficulty  of  inducing  our  wayward 
patients  to  forego  certain  gratifications,  to  practice  certain  self- 
denials,  and  to  adopt  efficient  means  for  the  salvation  of  the 
child. 

This  is  not  all.  We  can  bear  testimony,  that  in  some  in- 
stances, the  woman  who  has  been  well  educated,  who  occupies 
a  high  station  in  society — whose  influence  over  others  is  great, 
and  whose  character  has  not  been  impugned,  will  deliberately 
resort  to  any  and  every  means  which  may  effectually  destroy  her 
unborn  offspring.  Ashamed  or  afraid  to  apply  to  the  charlatan, 
who  sustains  his  existence  by  the  price  of  blood,  and  dreading  pub- 
licity, she  boldly  find  recklessly  adopts  measures,  however  severe 
and  dangerous,  for  the  accomplishment  of  her  unnatural  and 
guilty  purpose.  She  will  make  extra  muscular  efforts,  by  long, 
fatiguing  walks,  by  dancing,  running,  jumping,  kept  up  as  long 
as  possible ;  she  will  swallow  the  most  nauseous,  irritating  and 
poisonous  drugs,  and  in  some  instances,  will  actually  arm  herself 
with  the  surgeon's  instrument,  and  operate  upon  her  own  body, 
that  she  may  be  delivered  of  an  embryo,  for  which  she  has  no 
desire,  and  whose  birth  and  appearance  she  dreads. 

These  facts  are  horrible,  but  they  are  too  frequent  and  too 


ABORTION FCETICIDE.  247 

true.  Often,  very  often  must  all  the  eloquence  and  all  the 
authority  of  the  practitioner  be  employed ;  often  he  must,  as  it 
were,  grasp  the  conscience  of  his  weak  and  erring  patient,  and 
let  her  know,  in  language  not  to  be  misundersood,  that  she  is 
responsible  to  her  Creator  for  the  life  of  the  being  within  her." 

The  question  of  the  criminal  responsibility  of  the  medical 
practitioner,  in  cases  of  abortion  in  common  practice,  is  begin- 
ning to  receive  the  attention  of  able  medical  writers.  There  is 
no  doubt  that  abortion  is  often  brought  about  by  the  medical 
attendant,  without  a  full  appreciation  of  the  value  of  embryo  life. 

Horatio  R.  Storer,  M.  D.,  of  Boston,  has  recently  published 
an  able  article  on  this  subject,  in  the  April  number  of "  The 
American  Journal  of  the  Medical  Science?,  for  1859,"  from  which 
we  make  some  extracts  illustrative  of  this  subject.  He  says : 
"Whenever,  by  any  operation  or  other  procedure,  a  physician 
directly  produces  abortion,  unintentional  though  it  may  be,  if,  in 
the  absence  of  any  precaution  that  might  have  been  takeu,  he 
must  be  considered,  to  the  extent  evidenced  by  the  history  of  the 
patient,  responsible  therefor;  and  the  class  of 'cases  to  which  that 
now  reported  belongs,  is  accordingly  open  to  as  legitimate  a 
question  of  obstetric  morality  and  of  criminal  responsibility  as 
that  other  series,  of  late  so  ably  discussed  by  Dr.  Churchill,  of 
Dublin." 

This  highly  moral,  humane  and  legally  sound  proposition  is 
illustrated  by  the  writer  by  two  cases.  The  first,  was  where  the 
patient  w.is  suffering  from  excessive  toothache  while  five  and  a 
half  months  gone  with  her  first  child ;  in  other  respects  of  good 
health,  there  being  no  other  neuralgic  pain.  All  the  usual  means 
had  been  exhausted,  such  as  anodynes,  antispasmodics,  purgatives, 
fomentations,  counter-irritants,  the  extraction  of  a  carious  tooth, — 
all  without  the  slightest  relief.  The  patient  was  threatened  with 
abortion,  and  begged  that  it  might  be  brought  about,  declaring, 
if  refused,  she  would  induce  it  upon  herself  rather  than  endure 
further  pain.  This  case  was  immediately  cured  by  "a  fragment 
of  pellitory  root,  pyrethram,  as  a  direct  gingival  stimulant,  though 


248  MALPRACTICE. 

horseradish  would  probably  have  as  soon  answered  the  purpose," 
there  being  but  a  slight  attack  afterward,  and  relieved  by  the  same 
treatment.  He  says :  "  I  report  this  case  for  two  reasons.  In  the 
first  place,  as  an  instance  of  the  frequent  success  of  simple  and 
apparently  trivial  remedies,  after  severe  ones  have  failed.  The 
affection  seems  to  have  been  entirely  neuralgic  in  its  character, 
reflex,  the  result  of  the  uterine  irritation.  All  other  causes  men- 
tioned by  writers  as  liable  to  produce  it  were  absent;  there  was 
no  local  inflammation,  no  general  catarrhal  affection ;  the  disorder 
did  not  commence  at,  and  apparently  was  in  no  way  dependent 
upon,  the  carious  tooth,  at  least  it  was  not  relieved  by  its  removal, 
nor  by  the  local  bloodletting  this  occasioned.  The  second  of  the 
reasons  referred  to  is  the  following:  that  I  may  express  my 
strong  disavowal  of  the  practice  still  extensively  obtaining  among 
physicians  and  dentists,  of  subjecting  patients  to  the  risk  of 
miscarriage,  which  must  be  confessed  excessive,  by  the  extraction 
of  teeth  during  pregnancy.  This  procedure  should  in  no  instance 
be  resorted  to  till  every  other  measure  which  affords  any  prospect 
of  relief,  has  been  faithfully  employed.  In  the  history  reported, 
it  is  seen  that  such  is  not  the  case. 

Extraction  has  been  recommended  by  authorities  who  are 
respected;  by  Campbell,  Gardieu,  Capuron  and  others,  on  the 
supposition  that  there  is  a  greater  likelihood  of  abortion  from  the 
continued  pain;  but  against  this  argument  I  place  the  facts, 
that  after  resisting  many  remedies,  the  pain  often  disappears 
spontaneously, — as  indeed  allowed  by  one  of  the  writers  instancing 
Capuron, — and  that  in  more  plausible  measures,  tried  and  untried, 
readily  occuring  upon  reflection  to  all  who  do  not  blindly  follow 
the  books,  there  is,  I  think,  a  greater  probability  of  success. 
Anaesthesia,  local  and  general,  have  both  been  found  to  avail. 
The  extraction  of  teeth  in  pregnant  women  can  never  be 
defended,  except  when  abortion  is  actually  threatened,  and 
apparently  at  hand." 

The  other  case  was  one  of  flooding.  Dr.  S.  removed  an 
embryo  six  weeks  advanced.  The  object  of  this  case  is  not  to 


ABORTION FCETICIDE.  249 

illustrate  tne  impropriety  of  abortion,  but  to  show  that  from 
natural  causes,  or  from  the  effect  of  previous  labors,  there  may 
exist  a  condition  of  the  uterus,  that,  without  the  most  careful 
autopsy  was  made  and  intelligently  viewed, — the  abortion  having 
taken  place, — the  physician  might  be  led  erroneously  to  think 
there  had  been  criminal  interference.  In  this  case,  Dr.  S.,  says: 
u  My  first  impression  from  the  physical  examination  was  of  course 
that  the  abortion  must  have  been  owing  to  direct  instrumental  or 
other  violence,  which,  however,  the  patient  persistingly  •  denied." 
Again  he  says :  "  Upon  reviewing  this  case,  I  think  it  important 
to  dwell  upon  the  diagnostic  peculiarities  it  presents,  unadverted 
to,  so  far  as  I  am  aware,  by  any  obstetric  writer.  We  are  all  familiar 
with  the  various  permanently  disastrous  results  at  times  follow- 
ing instrumental  or  otherwise  difficult  labor,  the  adhesions,  bands 
and  fistulse,  that  not  unfrequently  come  under  medical  observa- 
tion ;  but  to  find  such  in  the  absence  of  all  signs  of  concomitant 
or  consequent  malignant  disease,  and  accompanied  by  profuse 
hemorrhage,— their  edges  cicatriced  themselves,  and  the  depres- 
sions between  them  obscured  and  filled  with  coagula,  and  at  the 
same  time,  and  in  the  midst  of  these  anomalies,  the  presentation 
of  an  aborting  ovum, — would  raise,  I  may  surely  say,  in  almost 
every  mind,  the  suspicion  of  foul  and  criminal  interference. 
Were  death  to  occur  under  such  circumstances,  the  result  at  an 
inquest  could  hardly  be  doubted,  unless  unusual  care  was  ob- 
served at  the  autopsy  to  remove  by  ablution  all  clots  obscuring 
the  age  of  the  existing  lesions;  a  precaution  that  in  most 
instances  would  hardly  be  observed,  for  fear  of  disturbing  any 
attachment  of  the  ovum, — so  often  in  these  cases  preserved  in 
the  cabinet, — that  might  still  obtain.  I  am  strengthened  in  my 
belief  that  many  of  the  Medico-legal  regulations  of  criminal  abor- 
tion are  as  yet  uninvestigated  or  unfounded,  and  that  with  every 
step  toward  their  elucidation  an  advance  is  made  toward  the  ulti- 
mate suppression  of  the  crime."1 

1  See,  also,  Essay  on  Criminal  Abortion,  North  Amer.  Med.  Chir.  Rev.  May,  1858. 


250  MALPRACTICE. 

At  Common  law  the  destruction  of  an  infant  in  utero  is  a  high 
misdemeanor,  and  at  an  early  period  it  was  deemed  murder ;  but 
there  must  have  been  quickening.1  When  the  child  dies  subse- 
quently to  birth,  from  wounds  received  in  the  womb,  it  is  clearly 
homicide,  even  though  the  child  is  still  attached  to  the  mother  by 
the  umbilical  cord.0  If  the  mother  is  not  yet  quick  with  child, 
it  is  still  an  indictable  offense  to  administer  a  drug  and  thus 
procure  abortion.3  "  The  civil  rights  of  an  infant  in  venire  sa 
mere,  are  equally  respected  at  every  period  of  gestation ;  and  it 
is  clear,  that  no  matter  at  how  early  a  stage  he  may  be  appointed 
executor,  is  capable  of  taking  as  legatee,  or  under  a  marriage 
settlement,  may  take  specifically  under  a  general  devise  as  a 
'child,'  and  may  obtain  an  injunction  to  stay  waste."4  It  is 
true,  that  in  Massachusetts,  the  Supreme  Court  held,  that  at 
Common  law  it  was  no  offense  to  produce  abortion,  unless  there 
is  quickness.5  The  Legislature  immediately  cured  the  supposed 
deficiency  by  statute.  The  Supreme  Court  of  Pennsylvania  has 
recently  decided  that  to  procure  abortion  on  a  woman  pregnant,, 
but  not  quick,  is  indictable  at  Common  law.6 

The  idea  once  existed  quite  generally,  and  it  still  exists  to 
some  extent,  that  there  is  no  offense  in  destroying  the  embryo  or 
foetus  before  there  is  a  manifest  knowledge  of  life  by  the  mother, 
derived  from  the  motion  of  the  child,  called  quickening.  How 
absurd  to  suppose  there  is  no  life  until  the  mother  can  feel  the 
muscular  motions  of  the  child.  As  well  might  we  deny  the 
vitality  of  the  blood  because  it  can  not  be  felt.  The  muscular 
tissue,  and  even  the  bones  to  which  they  are  attached,  must  have 


1  1  Rnss.  on  Cr.  671 ;  1  Vesey,  8G  ;  3  Cooke's  Inst.  50 ;  1  Hawk.  c.  13,  8,  16 ; 

1  Hale,  434 ;  1  East.  P.  C.  90  ;  3  Chitty  C.  L.  798  ;  Wharton's  Grim.  Law,  sec.  1220. 

2  Wharton's  Grim.  Law,  sec.  1220  ;  R.  v.  Senior,  1  Mood.  C.  C.  36  ;  R.  v.  Trillae. 

2  Mood.  C.  C.  13. 

3  W.&  S.  Med.  Juris,  sec.  344-5  ;  Gay's  Med.  Juris,  tit.  Abortion  ;  Lewis  0.  L.  10. 

4  Wharton's  Grim.  Law,  sec.  1220;  2  Vornou,  710;  Swift  v.  Duffield,  6  Serg. 
&  Rawle.  38. 

5  Com.  v.  Parker,  9  Mete.  263. 
•  Mills  v.  Gom.  1  Harris,  G31. 


ABORTION F03TICIDE.  251 

some  degree  of  substance  before  there  can  be  motion,  and  of 
course,  this  development  depends  upon  life.  Though  this  foolish 
notion  is  now  fully  exploded  in  medicine,  it  still  lingers  in  the 
popular  mind,  and  doubtless  leads  to  much  crime.  The  life  of  the 
foetus  or  embryo  immediately  after  conception  is  just  as  positive, 
physiologically,  as  at  any  subsequent  period.  Quickening  being 
an  incident  or  circumstance  in  the  course  of  development  of 
the  foetus,  it  indicates  not  the  commencement  of  a  i.e.v  stage 
of  existence,  but  only  a  new  manifestation  of  pre-existing  life — 
it  is  uncertain  in  its  periods,  sometimes  coming  on  at  three  months, 
sometimes  at  six,  and  sometimes  not  at  all.  Massachusetts  and 
New  Jersey,  therefore,  in  accordance  with  these  views,  have 
passed  statutory  enactments  to  make  penal  anti-quickening  fueti- 
cide,  the  courts  of  these  States  having  held  that  at  Common  law 
it  was  not  so.1 

Until  within  a  few  years  it  was  believed  that  if  a  woman  con- 
demned to  death  had  not  quickened,  though  she  claimed  to  be 
pregnant,  her  life  should  not  be  spared. 

It  was  customary,  in  the  English  courts,  when  the  prisoner 
claimed  that  she  was  pregnant,  to  appoint  a  jury  of  matrons  to- 
examine  her  and  determine  the  points.  This  is  illustrated  in  the 
case  of  Rex  v.  Wycherley.1 

The  prisoner  was  indicted  for  the  willful  murder  of  Ann,  her 
daughter,  a  child  aged  three  years,  by  drowning  her.  "The  case 
being  clearly  proved,  and  the  prisoner  being  found  guilty,  the 
learned  B.iron  GURNEY  passed  sentence  of  death  upon  her ;  and 
on  Mr.  Bellamy,  the  clerk  of  assizes,  asking  the  prisoner  if  she 
had  any  thing  to  say  in  stay  of  execution,  she  replied:  'I  am 
with  child  now.' 

GURNEY,  B.  Let  the  sheriff  impannel  a  jury  of  matrons 
forthwith.  Let  all  the  doors  be  shut,  and  no  one  be  suffered  to 
leave  the  court  The  sheriff  went  to  twelve  married  ladies  who  were 


1  W  bar  ton's  Grim.  Law,  sec.  1227. 
»  8  C.  &  T.  262. 


252  MALPRACTICE. 

present  in  court,  and  having  obtained  their  names,  returned  them 
in  a  panel  to  the  clerk,  and  these  ladies  were  then  called,  and 
the  fbrematron  was  sworn  in  the  following  form :  *  You,  as  fore- 
matron  of  this  jury,  swear  that  you  will  diligently  inquire,  search 
and  try  Ann  Wycherley,  the  prisoner  at  the  bar,  whether  she  be 
quick  with  child  or  not,  and  therefor  a  true  verdict  give,  according 
to  the  best  of  your  skill  and  knowledge.  So  help  you  God.' 
The  other  matrons  were  sworn  as  follows :  '  The  same  oath  which 
your  forematron  has  taken  on  her  part,  you  shall  well  and  truly 
observe  and  keep  on  your  respective  parts.  So  help  you  God.' 
A  bai.iff  was  then  sworn  in  the  following  form :  *  You  shall  well 
and  truly  keep  the  jury  of  matrons  without  meat,  drink  or  fire, 
candle  and  light  excepted ;  you  shall  suffer  no  person  but  the 
prisoner  to  speak  to  them ;  neither  shall  you  speak  to  them  your- 
self, unless  it  be  to  ask  them  if  they  are  agreed  on  their  verdict, 
without  leave  of  the  court.  So  help  you  God.'  The  jury  of 
matrons  then  retired  to  a  private  room,  and  the  prisoner  was 
taken  to  them.  After  a  short  time  they  sent  a  message  into 
court,  that  they  wished  for  the  assistance  of  a  surgeon.  GURNEY, 
B.,  said:  JI  think  that  I  ought  not,  considering  the  terms  of  the 
bailiff's  oath,  to  allow  a  surgeon  to  go  to  the  room  in  which  the 
jury  of  matrons  is,  and  that  they  should  come  into  court.'  The 
jury  came  into  court,  and  having  publicly  expressed  a  wish  for 
the  assistance  of  a  surgeon,  the  court  directed  Mr.  Greatorex, 
who  was  a  surgeon  and  an  accoucheur,  and  who  was  a  witness  in 
.another  case,  to  retire  and  examine  the  prisoner.  This  was  done, 
and  on  the  return  of  Mr.  Greatorex  to  the  court,  he  was  sworn  : 
<  You  shall  true  answer  make,  etc.,'  and  he  stated  that  he  saw 
no  reason  to  believe  that  the  prisoner  was  quick  with  child ;  his 
opinion  being  that  she  was  not  with  child  at  all,  but  that  if  she 
was,  she  could  only  be  in  the  early  stage  of  pregnancy. 

GURNEY,  B.  ' Quick  with  child'  is  having  conceived.  'With 
•quick  child '  is  when  the  child  has  quickened.  Do  you  understand 
the  distinction? 

Mr.  Greatorex.     '  I  do,  my  lord.' 


ABORTION FCETICIDE.  253 

The  jury  of  matrons  again  retired,  and  on  their  return  into 
court  they  found  a  verdict  that  the  prisoner  was  not  quick  with 
child. 

Before  the  time  appointed  for  the  execution  of  the  prisoner, 
she  was  respited,  in  order  that  it  might  be  ascertained  with 
certainty  whether  she  was  with  child  or  not." 

This  is  the  leading  English  case,  and  certainly  establishes  the 
position  that  the  child  exists  legally,  from  and  after  conception. 

If  the  intention  is  to  produce  abortion,  it  makes  no  difference 
what  the  article  is,  used,  whether  noxious  or  innoxious,  under 
the  statute  of  9  G.  4,  c.  31,  s.  13.1  Nor  need  the  woman  be 
actually  pregnant  to  constitute  the  offense.2 

The  following  is  the  statutory  law  upon  abortion  in  Ohio, 
passed  February  27th,  1834: 

That  any  physician,  or  other  person,  who  shall  willfully  ad- 
minister to  any  pregnant  woman  any  medicine,  drug,  substance 
or  thing  abortive,  or  shall  use  any  instrument  or  other  means 
whatever,  with  intent  thereby  to  procure  the  miscarriage  of  any 
such  woman,  unless  the  same  shall  have  been  necessary  to  pre- 
serve the  life  of  such  woman,  or  shall  have  been  advised  by  two 
physicians,  to  be  necessary  for  thit  purpose,  shall,  upon  con- 
viction, be  punished  by  imprisonment  in  the  county  jail,  not  more 
than  one  year,  or  by  fine,  not  exceeding  five  hundred  dollars,  or 
by  both  such  fine  and  imprisonment.3 

That  any  physician,  or  other  person,  who  shall  administer  to 
any  woman,  pregnant  with  a  quick  child,  any  medicine,  drug  or 
substance  whatever,  or  shall  use  or  employ  any  instrument  or 
other  means  with  intent  thereby  to  destroy  such  child,  unless  the 
same  shall  have  been  necessary  to  preserve  the  life  of  such 
mother,  or  shall  have  been  advised  by  two  physicians  to  be 
necessary  for  such  purpose,  shall,  in  case  of  the  death  of  such 


1  Rex  v.  Coe,  25 ;  6  C.  &  P.  403. 

•  1  Viet.  c.  85  ;  R.  v.  Goodchild,  2  C.  &  K.  293  ;  1  R.  &  M.  Cr.  Cases,  114,  216. 

»  Cur.  Stat.  348  ;  Wilson  v.  State,  220,  R.  319  ;  State  v.  Vawter,  7  Black  592. 


'254  MALPRACTICE. 

child  or  mother,  in  consequence  thereof,  be  deemed  guilty  of  high 
misdemeanor,  and  upon  conviction  thereof,  shall  be  imprisoned  in 
the  penitentiary  not  more  than  seven  years,  nor  less  than  one 
year. 

The  other  States  have  similar  laws  upon  the  subject  of  abortion. 
Mass.  Gen.  Laws,  sess.  1845,  c.  27;  and  1847,  c.  83.  New 
York,  sec.  1  of  c.  22  of  1846 ;  2  Rev.,  3d  Ed,  750—1845, 
779.  See  People  v.  Lohman,  3  Barbour,  S.  C.  216 ;  People  y. 
Stockham,  1  Harris,  C.  C.  424;  Id.  1  Parker,  C.  C.  285. 
Virginia  Code,  p.  724,  title  54,  c.  191.  Mich.  R.  S.  168—172. 
Wisconsin  R.  S.  231 

LEADING  AMERICAN  CASE. 
THE  PEOPLE  v.  MADAME  RESTELL,  2  Barb.,  216. 

In  this  important  case,  heard  on  writ  of  error  by  the  Supreme 
•Court  of  New  York,  some  important  points  were  decided. 

The  plaintiff  in  error  was  convicted  upon  an  indictment  which 
alleged,  in  the  first  count,  that  on  the  19th  of  July,  1846,  at  the 
city  of  New  York,  she  administered  to  one  Maria  Bodine,  a  certain 
drug  or  medicine,  with  intent  to  procure  the  miscarriage  of  the 
said  Maria  Bodine,  the  latter  being  pregnant  with  a  quick  child, 
and  the  said  drug  or  medicine  not  being  necessary  to  preserve 
her  life,  by  means  whereof  the  death  of  the  child  was  produced ; 
^ind  that  the  accused,  in  the  manner  and  by  the  means  aforesaid, 
did  feloniously  and  willfully  kill  and  slay  such  quick  child,  against, 
etc.  The  subsequent  counts  were  similar  in  form,  alleging  that 
the  accused  used  and  employed  a  certain  instrument,  her  hand, 
her  finger,  a  certain  violent  means,  etc.,  upon  the  body  of  the 
mother,  with  the  like  intent,  and  with  the  same  result ;  and  con- 
cluding in  the  same  manner.  The  accused  was  convicted  upon 
the  indictment  of  a  misdemeanor.  Several  exceptions  were  taken 
by  J.  T.  Brady,  her  counsel,  to  decisions  made  during  the  trial. 

The  court  says :  "  It  is  contended  in  behalf  of  the  defendant, 
that  the  indictment  is  invalid ;  that  it  neither  charges  a  felony 


ABORTION FCETICIDE.  255 

under  the  act  of  March  4th,  184G,  nor  a  misdemeanor  under  the 
act  of  May  13th,  1845.  So  far  as  relates  to  the  charge  of 
felony,  there  is  no  allegation  that  the  defendant  used  the  means 
to  procure  the  abortion  with  intent  thereby  to  destroy  the  child. 
That  is  a  part,  and  we  deem  it  an  essential  part  of  the  definition 
of  the  offense  contained  in  the  act  of  1846.  When  a  particular 
intent  accompanying  an  act  is  requisite  to  constitute  a  crime,  it 
should  be  averred  in  the  indictment.  This  had  been  decided  by 
the  twelve  judges  of  England. 

The  objection  to  the  charge  for  a  misdemeanor  in  this  case,  is 
not  that  the  indictment  does  not  state  enough,  but  that  it  avers 
too  much.  That  objection,  if  valid,  would  prevent  the  conviction 
for  any  inferior  offense  to  that  charged  in  the  indictment  When 
such  convictions  may  be  had  pursuant  to  the  27th  section  of  the 
statute  containing  general  provisions  concerning  crimes  and  their 
punishment,  the  indictment  always  charges  more  than  what  is 
requisite  to  constitute  the  offense  virtually  proved.  But  it  is  well 
settled  that  mere  surplusage  does  not  vitiate,  so  long  as  it  is  not 
contradictory. 

The  indictment  against  the  defendant,  charges  that  she  ad- 
ministered to  a  pregnant  woman  some  drug, — and  in  another 
count  that  she  employed  some  instrument, — with  intent  thereby 
to  procure  a  miscarriage  of  such  patient.  That  is  all  which  the 
2d  section  of  the  act  of  May  13th,  1845,  requires  to  constitute 
a  misdemeanor.  The  indictment,  however,  goes  further,  and 
alleges  that  the  patient  was  quick  with  child,  and  that  the  death 
of  such  child  was  effected,  and  characterizes  the  act  of  the  defend- 
ant as  felonious.  These  allegations  do  not  contradict  the  charge 
of  misdemeanor,  nor  do  they  contain  a  valid  charge  of  felony, 
which  would  merge  the  misdemeanor ;  because,  as  has  been  before 
remarked,  there  is  no  allegation  of  an  intent  to  destroy  the  child. 
It  was  contended  by  the  counsel  for  the  defendant,  that  a  con- 
viction under  the  indictment  in  question  would  be  no  bar  to  a 
subsequent  indictment  for  a  felony  on  the  same  facts,  and  that 
the  defendant  might  be  tried  and  punished  twice  for  the 


256  MALPRACTICE. 

same  act.  That  would  have  been  as  true  if  the  indictment  had 
contained  nothing  but  the  charge  for  the  misdemeanor.  But  the 
answer  to  this  is,  that  if  it  had  appeared  on  the  trial  that  the 
defendant  had  been  guilty  of  a  felony,  that  would  have  merged 
the  misdemeanor,  and  the  defendant's  counsel  might  have  called 
upon  the  court  to  instruct  the  jury,  that  if  they  were  satisfied 
that  she  was  guilty  of  a  felony,  they  should  acquit  on  the  indict- 
ment then  pending ;  and  if  the  court  had,  under  such  circum- 
stances, refused  so  to  charge,  it  would  have  been  error,  for  which 
any  conviction  would  have  been  reversed.  There  can  be  no 
danger  of  there  being  two  convictions  for  the  same  act,  unless 
the  court,  or  the  defendant's  counsel  commit  some  mistake  which 
can  not  be  corrected  on  a  writ  of  error.  On  the  whole,  we 
think  the  indictment  sufficient  to  sustain  the  conviction  for  a 
misdemeanor." 

As  to  the  admissibility  of  evidence  in  these  cases,  the  court  says: 
"  The  principal  witness  against  the  defendant  was  Maria  Bodine, 
on  whom  the  abortion  was  produced.  The  defendant'"1  coun- 
sel objected  to  her  admissibility  as  a  witness,  on  the  ground  that 
she  had  been  the  principal  in,  and  instigator  of,  the  offense  charged 
in  the  indictment.  The  law  is  well  settled  that  a  principal  is  a 
competent  witness  against  an  accessory;  so  also  are  the  accomplices 
against  their  copartners  in  crime.  The  principle  is  founded  on 
rules  of  public  policy.  In  many  cases  there  is  but  little  other 
evidence ;  and  it  is  better  that  an  accomplice  should  be  punished, 
than  that  all  should  escape.  Beside,  the  practice  has  a  tendency 
to  prevent  dangerous  combinations,  under  which  the  worst  crimes 
are  perpetrated.  In  the  case  of  David  Conkling,  tried  for  murder, 
in  Orange  County,  before  Van  Ness,  J.,  in  1819,  Jack  Hodges, 
who  shot  the  deceased,  and  was  therefore  the  principal,  was  admit- 
ted as  a  witness,  and  Conkling  was  convicted,  partly  upon  his 
testimony.  In  the  case  of  the  People  v.  Costello,  it  was  ex- 
pressly decided  that  the  woman  on  whom  the  abortion  was  pro- 
duced was  a  competent  witness.  There  can  be  no  doubt  upon 
this  '  oint. 


ABORTION FGETICIDE.  257 

It  appeared  from  the  evidence  of  Maria  Bodine,  that  she  went 
to  live  with  a  man  named  Cook,  as  a  housekeeper,  in  July,  1845. 
That  she  had  sexual  intercourse  with  him  in  the  following  month, 
which  was  continued  until  the  latter  part  of  April,  184G,  and 
that  she  became  pregnant  in  the  latter  part  of  that  month.  After 
she  had  stated  these  facts,  on  her  examination,  and,  so  far  as 
appears  from  the  bill  of  exceptions,  there  was  nothing  to  contra- 
dict them,  the  defendant's  counsel  asked  this  witness  whether  she 
had  had  any  sexual  intercourse  with  any  other  person  than  Cook, 
prior  to  April,  1846  ;  which  question  she  refused  to  answer,  and 
she  was  sustained  in  such  refusal  by  the  court.  It  is  contended 
that  the  court  should  h:ive  compelled  her  to  answer.  It  is  appar- 
ent that  the  question,  referring  in  turns  to  the  whole  of  the  wit- 
ness' previous  life,  was  too  general,  and  might  have  been  rejected 
for  that  reason,  if  the  objection  had  been  specifically  raised.  But 
that  objection  was  not  raised,  and  the  court  sustained  the  witness 
'in  her  refusal,  solely  on  the  ground  that  she  could  not  be  com- 
pelled to  give  an  answer  that  would  have  a  tendency  to  degrade 
her  character.  The  rule  seems  to  be  well  settled  in  this  State,  that 
a  witness  can  not  ordinarily  je  compelled  to  proclaim  his  own 
infamy  while  on  the  stanf1  But  if  he  voluntarily  waives  his 
privilege  in  order  to  sustain  a  charge  against  another,  he  can  not 
claim  it  when  asked  other  questions  having  a  tendency  to  weaken 
or  remove  such  charge.  That  would  be  manifestly  unjust,  and 
could  not  be  tolerated.  The  witness  in  the  case  had  voluntarily 
proclaimed  her  own  infamy,  in  having  constant  illicit  sexual  inter- 
course with  one  individual  for  nearly  a  year,  and  in  aiding,  at 
least,  in  procuring  an  abortion  of  her  child,  for  the  purpose  of  fixing 
a  criminal  charge  upon  the  defendant.  She  thereby  precluded 
herself  from  claiming  any  privilege  of  not  answering  questions 
of  a  similar  character,  if  they  related  to  the  same  point.  But  she 
could  not  be  required  further  to  degrade  herself,  by  going  into  a 
history  of  her  whole  life.  She  ought  not  to  be  compelled  to  give 
more  of  her  disgraceful  history  than  is  essential  to  promote  tne 
ends  of  justice.  The  prac  ''•*  adopted  in  case^  of  bastardy  illus- 
17 


258  MALPRACTICE. 

trates  and  confirms  this  principle.  There,  the  mother,  after 
degrading  herself  by  testifying  to  her  illicit  intercourse  with  the 
reputed  father,  can  be  required  to  state  whether  she  had  not 
similar  intercourse  with  others,  about  the  time  of  the  pregnation 
of  the  child.  But  she  can  not  be  compelled  to  answer  questions 
relating  to.  her  chastity  at  other  periods.  The  question  here  is, 
whether  the  interrogatory  put  to  Maria  Bodine  was  at  all  revelant 
to  the  facts  then  at  issue.  There  was  nothing  at  issue  previous 
to  the  12th  of  April,  1846.  The  pregnancy  originated  subse- 
quent to  that  time;  and  the  alleged  agency  of  the  defendant  was, 
of  course,  at  a  later  period.  Assuredly,  the  proposed  question 
could  not  have  had  any  direct  bearing  upon  either  of  these  points. 
Nor,  so  far  as  we  can  discern,  could  it  have  led  to  any  thing 
material  to  the  defense.  When  a  party  intends  to  coerce  an 
answer  tending  to  degrade  a  witness,  he  is  bound  to  show,  affirma- 
tively, that  the  question  is  revelant ;  there  is  nothing  to  show  such 
relevancy  in  this  case,  and  the  court  was  right  in  refusing  to 
compel  the  witness  to  answer  the  question. 

The  counsel  for  the  defendant  next  asked  the  witness  whether 
she  had  not  the  venereal  disease  during  the  fall  of  1845,  or  in 
the  winter  of  1845-6.  She  objected,  for  the  same  reason,  to  this 
question,  and  we  think  the  court  below  were  right  in  refusing  to 
coerce  an  answer.  The  question  did  not  refer  to  so  long  a  period 
as  that  which  produced  it,  but  it  was  in  other  respects  equally 
objectionable. 

The  last,  and  by  far  the  most  difficult  point  raised  by  this  bill 
of  exceptions,  is  as  to  the  adi>i:ssibility  of  the  question  pro- 
pounded to  Dr.  Smith.  The  witness  testified  that  he  had 
examined  Maria  Bodine,  professionally,  and  as  an  overseer  of  the 
poor,  in  the  latter  part  of  May  and  the  beginning  of  June,  1847. 
He  was  then  asked  by  the  district  attorney  the  following  question  : 
"In  consequence  of  your  examination,  and  the  opinion  you 
formed,  and  in  consequence  of  a  communication  confidentially 
made  to  you  as  a  physician,  by  Maria  Bodine,  as  your  patient, 
cotemporaneously  with  your  examination,  what  steps  did  you 


ABORTION FCETICIDE.  259 

take  ?"  The  counsel  for  the  defendant  thereupon  called  on  the 
counsel  for  the  prosecution  to  state  the  object  of  this  question. 
They  answered,  that  in  order  to  rebut  the  presumption  arising 
from  the  lapse  of  time  between  the  alleged  abortion  and  the  find- 
ing of  the  indictment,  and  the  assumption  that  the  complaint 
was  the  offspring  of  a  conspiracy,  or  perjury,  on  the  part  of 
Maria  Bodine,  they  wished  to  show  by  the  witness  that  he  wrote 
to  the  mayor  of  the  city  of  New  York,  and  was  the  cause  of  the 
prosecution  being  instituted.  The  counsel  for  the  defendant  then 
objected  to  the  question,  but  the  objection  was  overruled  by  the 
court.  The  witness  answered  that  he  wrote  to  the  mayor  of 
New  York,  on  the  2d  of  August,  1847.  And  that  on  the  6th 
of  that  month  officer  Bowyer  called  on  him,  and  they  went 
together  to  see  Maria  Bodine,  and  that  he  accompanied  her  to 
New  York  on  the  12th  of  August.  The  preface  to  the  ques- 
tion was  clearly  wrong,  but  that  related  to  the  form  or  manner 
of  asking  it,  and  not  to  the  substance  of  the  question.  In  such 
cases,  the  objection  should  be  specified,  for  the  obvious  reason 
that  the  party  asking  the  question,  may,  if  he  acquiesces,  ask  it 
in  a  correct  form.  As  a  leading  rule,  it  is  improper  for  a  party 
to  put  a  leading  question  to  his  own  witness ;  but  if  the  other 
party  does  not  raise  the  objection  specifically  at  the  time,  it  will 
not  avail  him  on  writ  of  error.  It  is  not,  in  fact,  one  of  his 
exceptions.  In  this  case  the  defendant's  counsel  asked  what 
was  intended  to  be  proved,  and  when  that  was  stated,  raised  the 
objection,  thereby  confining  it  to  the  question  itself,  and  in  effect 
waiving  any  objection  of  a  formal  character.  The  only  question 
now  is,  whether  the  evidence  called  for  was  competent  under  the 
•circumstances  of  the  case.  The  delay  in  preferring  the  charge 
was  calculated  to  excite  some  suspicion  of  its  truth ;  and  that 
would  lead  to  an  impression  that  the  witness  might  have  some 
sinister  motives  in  making  it  at  all.  What  was  said  by  the 
counsel  as  to  his  object  in  asking  the  question,  was  based  upon 
the  supposition  that  the  testimony  might  give  rise  to  those 
unfavorable  inferences.  If  there  were  circumstances  which  would 


260  MALPRACTICE. 

have  a  tendency  to  rebut  those  presumptions,  they  were  relevant, 
and  it  was  manifestly  proper  that  they  should  be  proved.  It  often 
happens  that  there  has  been  something  in  the  conduct  of  a  wit- 
ness preferring  a  true  complaint,  apparently  inconsistent  with  the 
main  charge;  and  in  such  cases,  it  is  the  constant  practice  to 
adduce  explanatory  evidence.  Such  testimony  is  often  given  on 
trials  for  rape,  when  the  prosecutrix  made  no  outcry  at  the  time  of 
the  perpetration  of  the  outrage,  or  was  tardy  in  making  the  com- 
plaint. That  is  merely  giving  evidence  of  one  fact  to  qualify 
or  explain  another,  and  both  are  equally  relevant. 

Upon  the  whole,  we  are  all  of  the  opinion  that  there  was  no 
error  which  could  have  at  all  prejudiced  the  defendant,  and  the 
judgment  of  the  court  below  must  be  affirmed." 

NOTE. — "  To  supply  a  great  want — this  crying  need  of  both  professions,  hiatus 
valde  deflendus,  Prof.  Elwell  has,  after  an  experience  of  many  years  both  as  a 
physician  and  a  lawyer,  compiled  the  above  work.  Bringing  as  he  does  to  this 
work,  the  result  of  his  own  personal  observation  upon  the  class  of  subjects  of 
which  it  treats,  he  has  succeeded  in  elucidating,  by  proper  comments,  the  decisions 
of  the  courts,  in  a  manner  which  renders  them  intelligible  in  their  essence,  not 
less  than  in  their  logic.  To  medical  practitioners  this  service  is  doubly  useful, 
since  it  enables  them  to  perceive  in  every  case  not  only  the  gist  of  the  issue,  but 
the  why  and  the  wherefore  of  the  legal  principles  governing  it.  A  man  educated 
solely  in  one  profession  could  not  have  accomplished  this  labor  singly,  whether 
lawyer,  whether  physician.  In  Prof.  Elwell,  fortunately,  the  qualifications  of 
both  professions  are  most  happily  united,  and  the  consequence  is  that  he  sp.aks 
to  either  profession  intelligently  and  usefully.  His  work  being  moreover  the 
very  first  of  its  kind  ever  published  in  the  United  States,  is  a  compliment  to  our 
national  pride  which  we  trust  will  not  be  overlooked  by  his  countrymen,  and  yet 
is  written  in  that  bold,  earnest  style,  which  courts  rather  than  shuns  criticism, 
and  asks  the  suffrai^e  of  our  judgment  upon  the  sole  basis  of  its  merits.  That 
basis  is,  in  our  opinion,  a  broad  one  ;  or  if  even  any  stone  or  pillar  is  wanting  in 
it,  -which  we  yet  perceive  not,  it  must  be  on  some  exceptionable  topic  which 
courts  have  so  rarely  passed  upon  that  it  has  no  recognized  importance  outside 
its  place  hi  the  history  of  medico-legal  adjudications. 

Our  limited  space  does  not  permit  us  to  notice  in  detail  the  several  always  in- 
teresting, always  thoroughly  discussed  chapters  which  form  this  compendium. 
To  investigate  each  in  its  foundation,  its  superstructure,  and  its  subdivisions, 
would  require  nothing  less  than  the  compass  of  the  whole  Journal.  It  must 
suffice  to  say  that  each  principle  has  been  viewed  under  the  light  of  both  Englsh 
and  American  law — has  been  analyzed  in  extensio,  and  finally  located  in  its  proper 
place,  and  where  it  would  most  pertinently  come,  in  any  judicial  investigation, 
In  doing  this  the  author  has  not  lost  sight  of  the  necessity  of  supproting  his  dis- 
cussion by  well  selected  cases  whose  punctum  saliens  is  the  identical  principle 
under  consideration.  These,  therefore,  are  leading  cases,  and  as  such  always 
Orthodox  and  authorative  before  courts  until  overruled. 

We  cannot  close  this  brief  and  imperfect  review  of  Prof.  Elwell's  book, 
throughout  which  we  have  seen  so  much  more  to  praise  and  to  admire  than  we 
have  dared  give  utterance  to,  without  calling  attention  to  the  fact  that  the  field 
trodden  by  him  is  both  a  new  and  a  rich  one."  Prof.  John  Ordronaux,  in  New 
York  Journal  of  Medicine. 


3L,  E  API  JST  G  8  . 


PETITION. 
A.  B.,  Plaintiff,      ) 

«.  >  PETITION. 

€.  D.,  Defendant.  ) 

The  said  A.  B..  plaintiff,  complains  of  the  said  C.  D.,  defendant,  for  that  the 
said  plaintiff,  before  and  at  the  time  of  the  retainer  of  the  said  defendant  herein 
after  mentioned,  had  had  the  bones  of  his  right  leg  below  the  knee  broken  and 
fractured,  and  that  afterward,  to-wit:  on  the  --  day  of  -  A.  D.  18—,  the 
sii.l  plaintiff,  at  the  special  instance  and  request  of  the  said  defendant  retained 
and  employed  the  said  defendant  as  a  surgeon,  to  set  and  reduce  the  said  frac- 
ture of  the  bones  of  his  said  leg  to  their  proper  position  and  place,  and  to  attend 
to,  cure,  and  heal  he  same  for  a  certain  fee  and  reward  to  the  said  defendant  in 
that  behalf,  and  the  said  defendant  undertook  and  entered  upon  such  retainer  and 
employment  ,  yot  the  said  defendant,  not  regarding  his  duty  in  the  premises, 
so  carelessly,  negligently,  and  unskilfully  set  and  reduced  the  said  fracture  of 
said  leg,  and  so  negligently  and  unskillfully  bound  up,  and  dressed  and  bandaged 
the  same,  and  so  unskilfully  and  negligent  ly  nursed  and  attended  to  the  said 
fracture  and  injury,  that  the  said  plaintiff,  by  reason  of  such  unskilHulntss 
and  negligence  has  "wholly  lost  the  use  of  his  said  leg,  (or,  that  his  leg  has 
become,  and  still  id  crooked  and  shorter  than  in  its  natural  state,)  whereby  he 
hath  been  greatly  injured  and  rendered  unlit  and  unable  to  follow  his  lawful 
business,  and  has  also  been  put  to  great  expense,  to-wit:  the  sum  of  $  -  ,  in 
and  about  endeavoring  to  straighten  and  improve  and  cure  his  said  leg,  to  the 
damage  of  the  said  plaintiff  of  1  -  ;  wherefore  the  said  plaintiff  prays  judg- 
ment against  the  said  defendant  for  the  said  sum  of  $  -  ,  his  damages  so  as 
aforesaid  sustained.  Nash's  Pleadings  and  Practice,  Vol.  I,  027. 

The  averments  as  to  the  part  affected  and  the  negligence  must  of  course  be 
vaiied  to  meet  the  facts  in  each  case.  Whatever  the  negligence  or  want  of  skill 
consisted  in  must  be  definitely  stated.  If  an  improper  splint  or  bandage  or 
medicine  was  used  or  improperly  applied  it  must  be  set  forth.  It  is  not,  how- 
ever, necessary  to  set  forth  the  kind  of  medicine  used,  though  if  known  it  is  well 
enough  to  do  so. 


ANSWER.— GENERAL    DENIAL., 
A.  B,,  Plaintiff,      ) 

v.  }•  ANSWER. 

C.  D,,  Defendant.  ) 

And  now  comes  the  said  D.  C.,  defendant,  and  for  answer  to  the  petition  of 
the  said  A.  B  ,  plaintiff,  saith  that  the  said  plaintiff  ought  not  to  have  his  afore- 
said action  thereof  against  this  defendant,  because  he  saith  that  he  denies,  all 
and  singular,  the  allegations  averred  by  the  said  plaintiff  in  his  said  petition,  in 
manner  and  as  the  same  are  therein  stated;  and  of  this  he  puts  himself  upon  the 
country. 

Unless  constant  disputes  are  to  be  met  with  in  every  case  in  the  courts,  it  is 
absolutely  necessary  to  have  some  such  general  form,  the  meaning  and  scope  of 
which  shall  become  fixed  and  settled,  known  and  recognized,  so  that  every  one 
may  know  that  in  using  it  there  can  be  no  misunderstanding.  The  parties  will 
know  exactly  what  is  the  issue;  what  is  to  be  proved  on  the  one  side,  and  what 
disproved  on  the  other.  Whereas,  if  one  is  to  be  lelt  to  prove  what  he  may  call 
his  general  denial,  there  will  be  constant  disputes  as  to  what  is  or  is  not  covered 
by  the  answer  ;  and  the  court  will  be  constantly  disagreeing  with  the  pleader  as  to 
the  extent  and  meaning  of  his  answer,  and  he  and  his  client  will  be  subjected 
to  constant  vexation  and  expense  in  groping  their  way  to  what  is  material  in  the 
case.  It  matters  not  so  much  what  the  exact  form  uf  the  answer  '8,  so  there  is 
one  to  which  all  can  apply  with  the  certainty  of  doing  just  what  they  intend  to 
do,  and  nothing  else.  The  case  of  Lewis  «.  Coulter,  (10  Ohio  St.,  437,)  that  a 
general  denial  should  be  of  each  and  all,  etc.,  though  the  word  material  should 
not  be  attached  to  the  allegation.  Nosh's  Pleading  and  Practice,  I,  CJ8.  Den- 
nison  v.  Dennison,  6  Pr,,  Ji46,  N.  Y. 


PART    II. 


MEDICAL    EVIDENCE. 


CHAPTER  XVII. 

EVIDENCE  IN  GENERAL— CIRCUMSTANTIAL  EVIDENCE. 

To  determine  what  is  right  and  what  wrong, — to  ascertain  what 
is  known  and  what  unknown,  —  to  find  out  what  is  beneficial 
for  an  individual  or  for  society,  and  what  injurious, — to  establish 
good  rules  of  action  and  abolish  bad  ones;  has  been  the  great 
legal  problem  of  all  ages  and  in  all  civilized  countries, — making 
up  the  labor,  and  occupying  the  closest  thoughts  of  the  clearest 
and  ablest  reflecting  minds. 

To  the  attainment  of  this  end,  systematic  judicial  investigations 
have  been  originated,  and  slowly,  but  steadily  consolidated  into 
harmony,  and  governed  by  tolerably  certain  and  fixed  rules  and 
regulations.  The  great  value  of  these  rules,  and  their  practical 
importance,  can  only  be  measured  by  the  great  interests  of  justice 
and  right,  pertaining  to  life,  liberty,  reputation  and  property, 
which  they  contribute  to  establish,  protect  and  settle. 

When  the  rules  of  law  are  administered  or  put  into  opera- 
tion, it  is  assumed  that  the  facts  upon  which  they  are  predi- 
cated are  true,  as  well  as  those  to  which  they  are  applied.  It  is 
of  the  greatest  importance,  therefore,  that  the  evidence  upon 
which  these  assumed  facts  stand,  be  true.  The  evidence  must  be 
true,  or  the  conclusion  is  erroneous.  It  is  the  basis  upon  which 

(  2G3) 


264  MEDICAL   EVIDENCE. 

facts  stand.  Law  is  not  entitled  to  rank  as  a  science,  until  there 
is  such  a  combination  of  well  established  truths,  —  established 
upon  the  true  principles  of  demonstration,  as  will  constitute  indu- 
bitable evidence  of  these  truths.  These  truths,  when  thus  estab- 
lished and  arranged  in  a  methodical  order,  receiving  the  confidence 
of  community,  constitute  the  science  of  law.  Just  so  far  as  these 
claimed  truths  are  true,  law  is  certain:  but  where  they  are 
established  on  uncertain  or  doubtful  evidence,  so  far,  law  is 
uncertain. 

Justice,  is  the  constant  and  perpetual  disposition  to  render  to 
every  being  his  due ;  and  jurisprudence  is  the  application  of  this 
justice  in  adjusting  the  differences  and  difficulties  that  arise 
among  the  several  members  of  human  society :  by  it  the  rights 
of  each  individual  are  correctly  established,  if  the  evidence  of  the 
facts  in  the  case  is  true. 

The  universal  consent  of  the  truth  of  a  particular  fact,  estab- 
lishes it  beyond  dispute,  and  gives  to  such  fact  the  very  highest 
human  authority.  This  universal  consent  having  become  im- 
memorial, constitutes  the  basis  and  authority  of  the  Common  law. 
No  further  evidence  is  required  of  its  truth  than  this  universal 
usage  or  consent 

The  object  of  jurisprudence,  therefore,  can  not  be  separated 
from  that  of  pure  science;  the  common  purpose  of  both  is  the 
discovery  of  truth,  and  all  the  whole  range  of  philosophy,  moral 
and  physical, — medicine,  in  its  widest  sense, — mathematics, — 
every  thing, — which  experience  and  reason  has  established  or  can 
discover,  are  rendered  subservient  to  the  purposes  of  justice. 

While  there  is,  therefore,  no  limits  to  the  sources  and  objects 
of  evidence, — being  as  wide  as  nature  herself,  and  diverse  as  the 
affairs  of  mankind, — it  has  ever  been  a  source  of  great  embarrass- 
ment and  constant  diffiulty,  to  prescribe  such  rules,  boundaries 
and  restrictions  for  its  production  and  application,  as  will  best 
and  most  universally  subserve  the  ends  of  justice.  These  rules 
must  necessarily  be  well  guarded,  or  the  ultimate  end  of  all  evi- 
dence is  defeated.  They  are  generally  of  a  negative  character, 


EVIDENCE   IN   GENERAL.  265 

and  exclude  certain  evidence  in  particular  cases  and  under  par- 
ticular circumstances,  on  grounds  of  general  utility  and  conveni- 
ence ;  still,  no  rules  for  limiting  the  introduction  or  application 
of  evidence,  however  necessary,  can  be  adopted  without  hazarding 
truth  and  justice. 

It  has  been  found  proper  and  useful  in  many  cases  to  fix 
definitely  and  positively  the  technical  and  arbitrary  effect  of  a 
particular  kind  of  evidence,  which  effect  does  not  actually  and 
naturally  appertain  to  it.  Although  in  some  cases  these  restric- 
tions may  even  protect  error  and  wrong,  yet  in  the  great  majority 
of  cases  they  are  found  to  protect  the  innocent  and  favor  truth. 
Some  circumstances  which  might  tend  to  elucidate  the  truth,  yet 
being  of  so  vague  and  fallacious  a  nature,  that  no  general  confi- 
dence can  be  placed  upon  them,  it  has  been  found  more  prudent 
and  safe  to  reject  their  application  in  certain  instances, where  they 
might  possibly  be  bei  eficial,  than  to  submit  to  the  greater  mis- 
chief and  inconvenience  that  would  follow  their  general  reception. 

Persons,  for  various  reasons  are,  or  may  be,  incompetent  to  give 
ny  evidence  whatever,  on  the  affirmative  or  negative  side  of  the 
issue,  though  they  may  know  all  about  it.  Defect  of  understand- 
ing, arising  either  from  natural  deficiency  of  intellect,  insanity  or 
immaturity  of  judgment, — want  of  religious  principle, — the  con- 
viction for  crime, — accomplices  in  crime,— matters  of  interest, — 
when  the  disclosure  would  be  in  violation  of  professional  confi- 
dence,— the  domestic  relation, — are  all  of  sufficient  consequence 
to  prevent  such  persons  from  being  intelligent,  good,  reliable  and 
truthful  witnesses. 

Evidence  may  be  positive  or  circumstantial.  Direct  or  positive 
testimony  is  generally  of  the  greatest  weight;  yet  this  is  not 
always  or  necessarily  the  case. 

Medical  Evidence  is  mainly  presumptive  or  circumstantial. 
Although  this  is  true,  it  should  be  no  serious  objection  to  its 
weight  and  importance.  The  testimony  of  a  witness  is  not 
altogether  dependent  upon  his  integrity  and  veracity.  Very 
much  rests  upon  thr  intelligence  and  ability  of  the  witness,  to 


266  MEDICAL   EVIDENCE. 

combine  existing  facts,  which,  when  combined,  lead  the  mind,  by 
a  stern  and  inflexible  chain  of  logical  sequence,  to  a  necessary 
result,  to  which  the  mind  must  give  it  its  credence. 

Presumptive  proof  differs  from  direct  evidence  in  this,  the  fiicts 
proved  are  not  the  exact  facts  in  issue,  and  the  facts  in  issue  are- 
arrived  at  by  act  of  reasoning  from  those  other  proved  facts.  A 
presumptive  fact,  is  only  an  inference  or  conclusion  of  the  mind,, 
from  other  facts  that  are  known;  it  is  a  result  of  reason;  a 
probable  inference,  resulting  from  the  application  of  common 
sense  to  the  circumstances  of  the  case.  There  ;ire  all  degrees  of 
presumptions,  from  the  lightest  suspicion,  to  the  highest  moral 
certainty.  If  the  presumptive  or  circumstantial  evidence  be  of 
sufficient  importance  as  to  afford  a  fair  and  reasonable  presumption 
of  the  fact  to  be  tried,  it  is  to  go  to  the  jury  for  what  it  is  worth, 
and  they  are  to  determine  what  its  value  is,  and  whether  it  is 
sufficiently  convincing  to  warrant  them  in  finding  the  facts  in 
issue.1 

A  sterner  rule  is  applied  to  presumptive  evidence  in  criminal 
prosecutions,  than  when  used  in  civil  cases.  In  criminal  prose- 
cutions, circumstantial  evidence  must  be  such  as  to  produce  nearly 
the  same  degree  of  certainty  as  that  which  arises  from  direct 
testimony.  A  less  degree  of  probability  may  be  safe'.y  adopted 
as  a  ground  of  judgment  in  civil  cases  than  in  criminal  prose- 
cutions,— property  being  of  less  importance  than  life  and  liberty.. 

Lord  Mansfield  says :  "  As  mathematical  or  absolute  certainty 
is  seldom  to  be  attained  in  human  affairs,  reason  and  public  utility 
require,  that  judges  and  all  mankind,  in  forming  their  opinion  of 
the  truth  of  facts,  should  be  regulated  by  the  superior  number 
of  probabilities  on  the  one  hand  or  the  other,  whether  the 
amount  of  these  probabilities  be  expressed  in  words  and  argu- 
ments, or  by  figures  and  numbers." 

Though  it  may  be  true,  as  a  general  principle,  that  the  positive 
evidence  of  a  fact  from  creditable  eye-witnesses  is  the  most  satis- 

1  Phillipps  on  Evidence,  page  437. 


EVIDENCE    IN    GENERAL.  267 

factory  that  can  be  produced ;  yet  there  are  cases,  undoubtedly, 
where  circumstantial  evidence  has  been  found  to  establish  as  high 
a  degree  of  certainty  of  a  prisoner's  guilt,  as  could  have  been 
produced  by  the  most  positive  direct  testimony. 

Some  presumptions  of  law  are  so  positive  and  conclusive,  as 
not  to  admit  of  contrary  proof.  It  is  a  presumption  of  law,  that 
innocence  is  to  be  presumed,  till  the  guilt  is  made  to  appear,  by 
conclusive  evidence,  and  this  is  founded  in  general  principles  of 
justice.  That  a  child  born  during  wedlock  shall  be  presumed  to- 
be  legitimate,  is  a  presumption  of  the  same  kind.  AVhen  a  per- 
son is  found  dead,  and  in  the  absence  of  testimony  to  the  con- 
trary, the  presumption  is  he  died  a  natural  death,  because  it  i& 
"appointed  unto  all  men  once  to  die."  Grants  and  deeds  are  pre- 
sumed to  support  a  long  and  continuous  possession ;  and  this  is 
founded  on  principles  of  public  policy  and  convenience. 

The  force  and  importance  of  circumstantial  evidence  is  well 
stated  by  one  of  the  ablest  and  most  learned  judges  that  ever 
graced  an  American  bench. 

In  the  case  of  the  Commonwealth  against  Harman,  a  case  of 
great  interest,  where  a  mother  was  indicted  for  the  murder  of 
her  child,  Chief-Justice  GIBSON,  in  his  charge  to  the  jury,  on  the 
subject  of  circumstantial  testimony,  used  these  words  : 

u  I  shall  confine  my  remarks  to  the  distinctive  character  and 
value  of  the  testimony.  No  witness  has  been  produced  who  saw 
the  act  committed,  and  hence  it  is  urged  for  the  prisoner,  that 
the  evidence  is  only  circumstantial,  and  consequently  entitled  to 
a  very  inferior  degree  of  credit,  if  any  credit  at  all.  But  that 
consequence  does  not  necessarily  follow :  circumstantial  evidence 
is,  in  the.  abstract,  nearly,  though  perhaps  not  altogether,  as 
strong  asTpositive  evidence ;  in  the  concrete,  it  may  be  infinitely 
stronger.  A  fact  positively  sworn  to  by  a  single  eye-witness,  of 
blemished  character,  is  not  so  satisfactorily  proved,  as  is  the  fact 
which  is  the  necessary  consequence  of  a  chain  of  other  facts, 
sworn  to  by  many  witnesses  of  undoubted  credibility.  Indeed, 
/  scarcely  know  whether  there  is  such  a  thing  as  evidence  purely 


"268  MEDICAL   EVIDENCE. 

positive.  You  see  a  man  discharge  a  gun  at  another ;  you  see 
the  flash,  you  hear  the  report;  you  see  the  person  fall  a  life- 
less corpse,  and  you  infer,  from  all  these  circumstances,  that 
there  was  a  ball  discharged  from  the  gun,  which  entered  his 
body  and  caused  his  death,  because  such  is  the  usual  and 
natural  cause  of  such  an  effect.  But  you  did  not  see  the  ball 
Jeave  the  gun,  pass  through  the  air,  and  enter  the  body  of 
the  slain ;  and  even  testimony  to  the  fact  of  killing  is,  there- 
fore, only  inferential,  or,  in  other  words,  circumstantial.  It  is 
possible  no  ball  was  in  the  gun ;  and  we  infer  that  there  was, 
only  because  we  can  not  account  for  the  death  on  any  other 
supposition.  In  case  of  death  from  the  concussion  of  the  brain, 
-strong  doubts  have  been  raised  by  physicians,  founded  on  appear- 
ances verified  by  the  post  mortem  examination,  whether  an 
accommodating  apoplexy  had  not  stepped  in  at  the  nick  of  time, 
to  prevent  the  prisoner  from  killing  him,  after  the  skull  had  been 
broken  in  pieces.  I  remember  to  have  heard  it  doubted  in  this 
court,  whether  the  death  of  a  man,  whose  brains  oozed  through  a 
hole  in  his  skull,  was  caused  by  the  wound,  or  a  misapplication 
of  the  dressings.  To  some  extent,  however,  the  proof  of  the 
•cause  which  produced  the  death  rested  on  circumstantial  evidence. 

The  only  difference  between  positive  and  circumstantial  evi- 
dence is,  that  the  former  is  more  immediate,  and  has  fewer  links 
in  the  chain  of  connection  between  the  premises  and  conclusion ; 
but  there  may  be  perjury  in  both.  A  man  may  as  well  swear 
falsely  to  an  absolute  knowledge  of  a  fact,  as  to  a  number  of 
facts,  from  which,  if  true,  the  fact  on  which  the  question  of  guilt 
or  innocence  depends  must  inevitably  follow.  No  human  testi- 
mony is  superior  to  doubt  i  the  machinery  of  criminal  justice, 
like  every  other  production  of  man,  is  necessarily  imperfect ;  but 
you  are  not,  therefore,  to  stop  its  wheels.  Because  men  have 
been  scalded  to  death,  or  torn  to  pieces  by  the  bursting  of 
boilers,  or  mangled  by  wheels  on  a  railroad,  you  are  not  to  lay 
aside  the  steam-engine. 

Innocent  men  have,  doubtless,  been  convicted  and  executed 


CIRCUMSTANTIAL   EVIDENCE.  269" 

on  circumstantial  evidence ;  but,  innocent  men  have  sometimes 
been  convicted  and  executed  on  what  is  called  positive  proof. 
What  then?  Such  convictions  are  accidents,  which  must  be 
encountered ;  and  the  innocent  victims  of  them  perished  for  the 
common  good,  as  much  as  soldiers  who  have  perished  in  battle. 
All  evidence  is  more  or  less  circumstantial,  the  difference  being 
only  in  the  degree ;  and  it  is  sufficient  for  the  purpose,  when  it 
excludes  disbelief — that  is,  actual  and  technical  belief;  for,  he 
who  is  to  pass  on  the  question  is  not  at  liberty  to  disbelieve  as 
a  juror,  while  he  believes  as  a  man. 

It  is  enough  that  his  conscience  is  clear.  Certain  cases  of 
circumstantial  proofs  to  be  found  in  the  books,  in  which  innocent 
persons  were  convicted,  have  been  pressed  on  your  attention.. 
Those,  however,  are  few  in  number,  and  they  occurred  in  a  period 
of  some  hundred  of  years,  in  a  country  whose  criminal  code 
made  a  great  variety  of  offenses  capital.  The  wonder  is,  that 
there  have  not  been  more.  They  are  constantly  resorted  to,  in 
capital  trials,  to  frighten  juries  into  a  belief  that  there  should  be 
no  conviction  on  merely  circumstantial  evidence.  But  the  lav 
exacts  a  conviction,  whenever  there  is  legal  evidence  to  show  the 
prisoner's  guilt,  beyond  a  doubt ;  and  circumstantial  evidence  is 
legal  evidence. 

If  the  evidence  in  this  case  convinces  you  that  the  prisoner 
killed  her  child,  although  there  has  been  no  eye-witness  of  the 
fact,  you  are  bound  to  find  bar  guilty.  For  her  sake,  I  regret 
the  tendency  of  these  remarks;  but  it  has  been  our  duty  to  make 
them,  and  it  will  be  yours  to  attend  to  them." 

The  circumstantial  evidence  brought  out  by  the  conclusions  of 
science,  like  that  of  the  medical  witness,  is  often  much  stronger 
than  what  passes  for  positive  proof:  thus,  in  the  case  of  Dr. 
Webster ;  science  took  the  mutilated  remains  of  a  jaw  bone,  and 
the  artificial  teeth  that  had  been  fitted  to  it, — rescued  from  the 
smouldering  ashes, — and  proved  beyond  controversy  and  doubt, 
that  they  belonged  to  Dr.  Parkman, — Dr.  Keep  having  made  the 
artificial  teeth  and  fitted  them  to  the  jaw  of  Dr.  Parkman  in  life- 


"270  MEDICAL  EVIDENCE. 

Dr.  Wyman,  the  scientific  and  accomplished  anatomist,  brought 
the  burnt  fragments  together,  thus  reproducing  the  bone  in  its 
original  form.  The  cast  upon  which  the  teeth  were  made  corres- 
ponded to  this  bone.  The  circumstances  were  so  strong  that  the 
jury  could  not  resist  the  conclusion  that  the  jaw  bone  belonged 
to  Dr.  Parkman. 

One  of  the  most  general  rules  for  the  introduction  of  evidence 
is  thus  given  by  Starkie :  "  To  admit  every  light  which  reason 
and  experience  can  supply  for  the  discovery  of  truth,  and  to 
reject  that  only  which  serves  not  to  guide,  but  to  bewilder  and 
mislead,  are  the  great  principles  which  ought  to  pervade  every 
system  of  evidence.  It  may  safely  be  laid  down  as  an  universal 
proposition,  that  the  less  the  process  of  inquiry  is  fettered  by 
rules  and  restraints,  founded  on  extraneous  and  collateral  con- 
siderations of  policy  and  convenience,  the  more  certain  and  effi- 
cacious will  be  its  operation." 

The  common  or  unprofessional  witness  is  expected  and  required 
to  testify  only  to"/ac/s,  and  such  facts  as  are,  at  the  time,  within 
his  knowledge  and  recollection.  A  statement  of  facts  read  from 
a  paper  will  not  be  received  as  testimony,  if  the  witness  has  no 
recollection  of  these  facts  outside  of  such  paper,  because,  if  the 
paper  is  proper  to  be  submitted  to  the  jury,  they  ought  to  have 
it  as  evidence,  in  which  case  it  would  be  better  evidence  than 
what  the  witness  might  say.  A  paper  may  be  used  as  a  memo- 
randum to  assist  the  witness'  memory,  and  he  may  be  compelled 
to  so  use  it  if  the  writing  is  present  in  court.1  He  must,  however, 
speak  not  from  the  paper  but  from  recollection. 

The  impressions  of  a  witness  are  received  as  evidence,  and 
the  jury  may  give  to  them  what  weight  they  suppose  them  to 
be  entitled.2  And  in  some  cases  the  belief  of  a  witness  will  be 
received  as  evidence ;  thus,  a  witness  may  give  his  belief  as  to 
the  identity  of  a  person  in  question,  or  of  the  handwriting  in 


i  Reed  v.  Boardman,  20  Pick.  442. 
1  Clark  v  Reglan,  4  Shepl.  246. 


CIRCUMSTANTIAL   EVIDENCE.  271 

dispute,  if  he  has  had  an  opportunity  of  knowing  such  person  or 
handwriting.1 

As  a  general  thing,  however,  the  witness  must  know  and  not 
believe  the  facts  to  which  he  deposes.  To  know,  and  to  believe, 
are  conditions  of  mind  very  different;  belief  is  founded  upon 
probable  conjecture;  knowledge  is  based  upon  that  certainty 
which  is  acquired  by  our  senses  or  by  reason.  He  who  has 
neither  seen  nor  heard  the  facts,  can  only  believe  them,  he  can 
not  know  them.2 

The  witness  can  not  disclose  matter  which  is  indecent  or  offen- 
isive  to  public  morals,  or  detrimental  to  the  feelings  or  interests 
of  third  persons,  and  should  not  disclose  that  which  will  criminate 
or  subject  himself  or  others  to  disgrace.3 

Counsel  are  very  apt  to  be  precautions  that  the  witness  knows 
whereof  he  testifies — that  he  is  neither  mistaken  or  desirous  to 
deceive.  No  facts  in  the  character  of  an  event  is  known  to  a 
demonstration  except  through  the  senses.  To  know  a  fact  then, 
positively,  it  must  have  been  seen,  and  to  testify  to  it  properly, 
he  must  not  only  have  been  present  when  the  fact  transpired,  but 
he  must  have  given  his  attention  to  the  circumstances,  so  as  to 
fix  them  in  his  memory.  Hearing  is  much  more  deceptive  than 
sight ;  for,  although  there  are  facts  which  are  more  properly  compre- 
hended and  known  by  hearing,  as  in  case  of  slander  and  the  like, 
•still  it  is  very  easy  for  the  most  honest  witness,  who  is  guided 
by  the  sense  of  hearing  alone,  to  be  mistaken  in  his  judgment, 
as  to  the  author  of  such  slander.  Knowledge  acquired  alone 
by  hearing  is  entitled  to  but  little  confidence.  If  more  than  one 
sense  takes  cognizance  of  the  fact  it  is  so  much  the  more  certain. 

Hearsay  evidence  is  not,  in  general,  deserving  of  much  credit 
or  confidence. 

A  detailed  statement  of  the  reasons  and  circumstances  of  the 


1  Rex  v.  Pedley,  Leach  Crown  Cases,  365. 

2  3  Bouvier,  Inst.  145. 

*  Rex  v.  Hardy,  24  St.  Tr.  753,  811 ;  Cowen  &  Hill's  Notes,  531. 


272  MEDICAL   EVIDENCE. 

conclusions  to  which  the  witness  has  arrived,  which  he  con  iders 
facts,  if  consistent,  is  the  surest  means  of  inducing  belief,  for 
then  the  court,  jury  and  counsel  can  determine  whether  the  wit- 
ness has  sufficient  knowledge  of  the  facts  to  give  force  to  his 
testimony,  and  certainty  to  his  conclusions. 

The  manner  of  the  witness  goes  far  to  inspire  confidence  or 
distrust.  If  the  witness  proceeds  in  an  equivocal,  halting  man- 
ner, not  using  affirmative  terms,  he  will  not  receive  that  degree  of 
credit  that  he  would,  if  he  coolly,  firmly  and  candidly,  without 
any  real  or  apparent  prejudice  or  hesitation,  state  distinctly  wh:it 
he  knows,  and  upon  what  his  knowledge  is  founded.  If  the  wit- 
ness' manner  is  open,  and  free  from  that  peculiar  restraint  and 
nervousness  that  usually  characterizes  the  interested  or  dishonest 
witness,  and  if  he  can  give  a  clear  and  complete  reason  lor  his 
statement,  then  he  will  be  believed.  If,  on  the  other  hand,  he  is 
over  exact,  or  very  loose  in  his  statement,  reluctant,  or  unable 
to  give  a  good  reason  for  what  he  says,  he  will  be  distrusted  and 
discredited. 

These  general  suggestions  in  regard  to  Evidence,  are  designed 
especially  for  medical  men,  who  have  not  access  to  the  text  books 
of  the  legal  profession  on  the  subject,  the  voluminous  character 
and  expensiveness  of  which,  if  within  their  reach,  would  preclude 
a  sufficiently  thorough  examination  to  master  these  general  prin- 
ciples. The  most  industrious  medical  man  finds  exhaustless 
fields  of  labor  in  his  own  profession,  and  general  principles  are 
all  he  needs  or  has  time  to  study  outside  of  it. 


CHAPTER   XVIII. 

EXPERTS— PROFESSIONAL  OPINIONS. 

THAT  class  of  witnesses  who  are,  by  the  courts  or  parties  con- 
cerned, chosen  on  account  of  their  special  knowledge  or  skill  in 
particular  matters,  to  testify  or  make  a  report  embodying  their 
opinions,  are  generally  known  as  experts. 

Extra  knowledge  on  questions  of  science,  skill,  trade,  business 
or  other  matters  requiring  special  knowledge,  qualifies  the  person 
thus  informed  to  give  opinion*  in  courts  of  justice.  This  is  con- 
trary to  the  general  rule,  that  the  witness  must  confine  himself 
to  facts,  and  leave  the  conclusions  of  those  facts  to  be  deter- 
mined by  a  court  or  jury  under  oath. 

An  opinion  is  the  judgment  which  the  mind  forms  on  any 
proposition,  statement,  theory  or  event,  the  truth  or  falsehood 
of  which  is  supported  by  a  degree  of  evidence  that  renders  it 
probable,  but  does  not  constitute  absolute  knowledge,  truth  or 
certainty. 

These  opinions,  or  conclusions  of  judgment,  which  make  up 
such  opinions  of  experts,  are  the  same  in  substance  as  the  verdict 
of  a  jury  or  judgment  of  a  court,  which  is  nothing  more  than 
the  opinion  of  such  jury  or  court  as  to  what  is  established  by 
the  facts  in  the  case.  This  conclusion  or  opinion,  in  the  latter 
case,  is  given  under  the  sanction  of  an  oath ; — so  is  that  of  the 
expert.  There  is  this  difference,  however,  in  the  two  cases. 
The  court  or  jury  is  under  oath  while  they  are  making  up  their 
opinions  upon  the  facts  in  the  case,  and  these  facts,  upon  which 
the  opinion  is  predicated,  are  also  submitted  to  the  minds  of 
counsel  and  parties.  The  facts  are  also  given  by  the  common 
witness  under  oath,  upon  which  the  jury  or  court  makes  up  an 
18  (273) 


274  MEDICAL    EVIDENCE. 

opinion.  The  expert,  on  the  other  hand,  comes  to  the  results 
constituting  his  opinion,  which  is  to  be  received  in  evidence,  from 
his  own  private  study,  observation  and  reflection.  He  is  not 
under  oath  when  he  weighs  his  facts,  and  however  anxious  he 
may  be  to  come  to  correct  conclusions,  he  is  not  under  the  signifi- 
cant and  impressive  obligation  of  an  oath  to  do  so.  And  though 
the  facts  upon  which  the  witness'  opinion  is  based,  may  be  called 
for  by  the  counsel,  yet,  from  the  very  nature  of  the  case,  it  is  not 
to  be  expected  that  the  jury  or  court  will  understand  them. 
This  opinion  then  of  the  expert,  is  the  private  judgment  of  the 
witness,  given  under  oath.  A  juryman  can  have  no  private 
opinion,  so  far  as  his  verdict  is  concerned.  All  he  can  do  is  to 
apply  his  general  knowledge  in  weighing  and  applying  the  facts 
or  professional  opinions  as  they  are  presented  to  him  by  the 
several  witnesses.  He  may  judge  of  the  credibility  of  a  witness 
.as  well  as  of  the  weight  of  his  statement,  but  he  must  not  rely 
-on  his  own  knowledge.  The  juryman's  oath  is,  "  to  try  the  issue 
joined  between  the  parties,  and  a  true  verdict  give,  according  to 
the  evidence"  In  the  language  of  the  court,  in  a  late  case  in 
Massachusetts,  1  Gray,  535,  "it  has  very  naturally  come  to  be 
well  settled,  that  a  juror  can  not  give  a  verdict  founded  on  facts 
in  his  private  knowledge.  If  the  juror  knows  any  particular 
fact  material  to  the  proper  decision  of  the  case,  he  ought  to  be 
sworn  as  a  witness,  anti  in  open  court,  and  be  publicly  examined, 
so  that  his  evidence,  like  that  of  other  witnesses,  may  first  be 
scrutinized  as  to  its  competency  and  bearing  upon  the  issue,  and 
for  the  further  reason  that  the  court  and  the  parties  may  know 
upon  what  evidence  the  verdict  was  rendered."  If  the  personal 
knowledge  of  a  juror  was  allowed  to  influence  his  verdict,  the 
jury  might  wholly  prejudge  the  case. 

From  the  fact,  that  the  same  kind  of  guards  can  not  be  thrown 
around  the  opinion  of  experts  as  are  brought  to  bear  upon  the 
juror,  and  the  additional  one,  that  opinions  of  experts  can  not 
be  subjected  to  that  severe  scrutiny  that  other  evidence 
undergoes,  this  kind  of  evidence  is  not  of  the  clear  and 


EXPERTS PROFESSIONAL   OPINIONS.  275 

positive  character,  or  of  the  value,  of  that  of  (acts,  as  a  general 
rule. 

It  will  however  at  once  be  perceived,  that  this  kind  of  evidence 
is  still  of  great  importance,  from  its  peculiarity ;  yet,  from  the 
crude  shape  under  which  it  may  come  before  the  court  or  jury,  it 
is  to  be  received  with  great  caution.  The  professional  witness,  to 
a  certain  extent,  assumes  the  duties  of  the  jury,  in  that  he  makes 
up  opinions  for  them,  and  were  he  not  subject  to  thorough 
cross-examination  as  to  the  means  of  information  upon  which  his 
opinions  are  formed,  and  the  reasons  for  such  opinions,  his  testi- 
mony would  be  dangerous. 

The  opinion  of  a  witness  is  in  no  case  evidence,  except  when, 
the  premises  upon  which  he  founds  his  conclusions  can  not  be 
understood  by  the  court  or  jury  without  study  or  knowledge  on 
that  special  subject,  or  without  the  aid  of  the  knowledge  of 
persons  whose  skill  is  superior  to  their  own.1  A  witness  is  not 
permitted  to  give  an  opinion  in  evidence,  unless  such  opinion  is 
based  upon  positive  special  knowledge.  An  opinion  made  up 
after  an  event,  from  no  precedent  or  usage,  on  a  question  liable  to 
be  governed  by  fancy  and  not  science  or  special  positive  knowl- 
edge, is  not  evidence.2 

It  would  seem,  however,  that  this  rule  was  severely  crowded,  if 
not  departed  from  altogether,  in  the  case  of  Richards  v.  Murdock.3 
This  was  an  action  on  a  policy  effected  by  the  plaintiff  as  agent 
for  Mr.  Campbell,  of  Sidney.  Upon  the  trial  it  appeared  that 
€ampbell,  hiving  shipped  the  goods  in  question  by  the  Cumber- 
land, wrote  by  another  ship,  the  Australia,  to  the  plaintiff)  desir- 
ing him  to  effect  an  insurance  thereon,  and  telling  him  at  the 
same  time,  that  in  order  to  give  every  chance  for  the  Cumber- 


1  Syracuse  Rail  Road  Co.  v.  Bodley.  10  How.  Pr.  289  ;  Moorhouse  v.  Matthewa 
2  Com.  514  ;  Liming  v.  The  State,  1  Chand.,  (Wis.)  178 ;  Protection  Ins.  Co.  v. 
Harmer,  2  Ohio,  452  ;  7  Foster,  (N.  H.)  157  ;  17  Wend.  136  ;  4  Denio,  311 ;  7 
Cush.  219  ;  1  Phillipps  on  Ev.  780. 

2  Carter  v.  Boehm  ;  Smith's  Leading  Cases. 

3  10  B.  &  C.  257. 


276  MEDICAL   EVIDENCE. 

land's  arrival,  he  had  directed  the  person  intrusted  with  that 
letter  not  to  deliver  it  until  thirty  days  after  the  Australia's  reach- 
ing London.  The  Cumberland  not  arriving  at  the  end  of  the 
thirty  days,  the  letter  was  delivered  to  the  plaintiff,  who  handed 
it  to  his  broker,  requesting  him  to  effect  the  insurance,  which  he 
accordingly  did,  with  the  Indemnity  Insurance  Company,  whom 
the  defendant  represented.  The  whole  of  the  letter  was  not  read 
to  the  company's  manager.  At  the  trial,  it  was  contended  that 
the  other  circumstances  respecting  the  mode  in  which  the  letter 
was  conveyed  to  England,  and  the  time  it  had  remained  there, 
were  material  and  ought  to  have  been  communicated,  and  that 
their  suppression  vitiated  the  policy;  and  several  underwriters 
were  called,  who  deposed  that,  in  their  opinion,  the  whole  of  the 
letter  ought  to  have  been  communicated,  and  that  the  parts  sup- 
.  pressed  were  material.  The  evidence  was  objected  to,  but  ad- 
mitted as  the  evidence  of  experts.  "Lord  TENTERDEN  said: 
"Several  witnesses  were  examined,  who  stated  that  they  thought 
the  letter  was  material,  but  it  has  been  contended  that  no  such 
evidence  ought  to  have  been  received.  I  know  not  how  the 
materiality  of  any  matter  is  to  be  ascertained  but  by  the  evidence 
of  persons  conversant  with  the  subject-matter  of  the  inquiry." 

That  a  witness  may  give  his  opinion  to  the  jury,  as  an  expert, 
who  is  conservant  with  the  subject  of  Insurance,  whether  par- 
ticular facts  if  disclosed  would  make  a  difference  as  to  the  amount 
of  premium,  has  been  affirmed  in  many  cases.1  A  difference  of 
opinion  undoubtedly  exists  on  this  question  among  judges.  The 
opposite  doctrine,  however,  to  that  last  mentioned,  is  main- 
tained by  Lord  Mansfield,  as  we  h;ive  seen  in  the  case  of  Carter 
v.  Boehm,  by  Gibbs  in  Durrell  v.  Bederly,  and  by  Lord  Denman 
in  Campbell  v.  Richards,  Jef.  In.  Co.  e.  Cotheal,  7  Wend.  72.  This 
may  certainly  be  considered  the  limits  of  this  kind  of  evidence. 


1  Richards  v.  Murdock,  10  B.  &  C.  527  ;  Bcrthon  v.  Longhman,  2  Star.  N.  P. 
258 ;  Durrell  v.  Bederly,  Holt.  N.  P.  C.  283  ;  3  Kent.  Coin.  284 ;  Story,  1  Peters, 
188 ;  Duer  on  Representations,  190. 


EXPERTS PROFESSIONAL   OPINIONS.  277 

As  a  general  rule,  the  opinions  of  a  witness  are  not  to  be  re- 
ceived in  evidence  merely  because  he  may  have  had  some  experi- 
ence, or  greater  opportunities  of  observation  than  others,  unless  they 
relate  to  matters  of  skill  and  science.1  An  expert  can  not  give  an 
opinion  on  the  case  where  the  facts  are  controverted,  but  counsel 
must  put  to  him  a  hypothetical  case,  or  a  supposed  state  of  facts, 
and  ask  the  opinion  of  the  witness  upon  these  facts.2  In  the 
McNaghton  case,  one  of  the  questions  propounded  to  the  learned 
judges  by  the  House  of  Lords,  was :  "  Can  a  medical  man,  con- 
versant with  the  disease  of  insanity,  who  never  saw  the  prisoner 
previous  to  the  trial,  but  who  was  present  during  the  whole  trial 
and  the  examination  of  all  the  witnesses,  be  asked  his  opinion  as 
to  the  state  of  the  prisoner's  mind  at  the  time  of  the  commission 
of  the  alleged  crime,  or  his  opinion  whether  the  prisoner  was 
conscious  at  the  time  of  doing  the  act,  that  he  was  acting  con- 
trary to  law ;  or  whether  he  was  laboring  under  any  and  what 
delusion  at  the  time."  To  which  question  the  judges,  per,  TINDAL, 
C.  J.,  answer :  "  We  state  to  your  lordships  that  we  think  the 
medical  man,  under  the  circumstance  supposed,  can  not  in  strict- 
ness be  asked  his  opinion  in  the  terms  above  stated,  because  each 
of  those  questions  involves  the  determination  of  the  truth  of  the 
facts  deposed,  to  which  it  is  for  the  jury  to  decide;  and  the 
questions  are  not  mere  questions  upon  matter  of  science,  in  which 
case  such  evidence  is  admissible.  But  when  the  facts  are  admit- 
ted or  not  disputed,  and  the  question  becomes  substantially  one 
of  science  only,  it  may  be  convenient  to  allow  the  question  to  be 
put  without  general  form,  though  the  same  can  not  be  insisted  on  as 
a  matter  of  right."  A  witness  therefore  can  not  be  asked  to  draw 
a  conclusion  of  fact  from  the  evidence  of  other  witnesses,  and 
then  give  an  opinion  to  the  jury  upon  these  facts,  if  objected  to 

In  the  case  of  Sills  v.  Brown,  38  Eng.  C.  L.  R.  245,  the  wit 


'  Robertson  v.  Stark,  15  N.  H.  109. 

2  1  Curtis,  Ct.  R.  1 ;  1  Chaud.  Wis.  R.  2G4 :  2  Mich.  133 ;  38  Eng.  Com.  Law 
R.  245:  McNaghtou's  case.  10  Clark  &  Fin.  210. 


278  MEDICAL  EVIDENCE. 

ness,  a  sea  captain,  was  asked  as  a  seaman,  "whether,  having 
heard  the  evidence  in  the  cause,  he  thought  the  conduct  of  the 
captain  of  the  brig  was  right  or  not."  The  court  held  the  ques- 
tion could  not  be  put. 

Any  witness  may  be  asked  his  opinion  as  to  whether  a  party  at 
a  certain  time  was  drunk.  It  is  not  so  much  an  opinion  as  a. 
statement  of  a  fact  involving  no  medical  or  scientific  knowledge. 

An  opinion  of  a  witness,  that  certain  articles  in  an  account 
were  necessary  for  A.  B.,  a  minor,  is  incompetent ;  he  must  state 
the  facts  as  to  the  condition  of  A.  B.,  and  leave  the  inference  to 
the  jury.1 

A  land  surveyor  testified  that  he  had  run  out  the  lines  of  lots 
surveyed  by  a  former  surveyor,  and  was  familiar  with  his  mode 
of  marking  corners,  and  then  testified  to  certain  marks  upon 
certain  alleged  corners,  as  having  been  made  by  the  former 
surveyor.  Held,  that  his  belief  that  the  marks  were  those  made 
by  the  former  surveyor,  was  not-  evidence  to  be  received  by  the 
jury  as  an  expert,  but  was  merely  the  testimony  of  a  witness  to- 
a  fact  within  his  knowledge,  and  was  to  be  credited  by  the  jury 
only  so  far  as  they  believe  him  able,  from  his  personal  knowledge, 
to  identify  the  mark  in  question.2 

It  is  well  settled  that  where  terms  of  art  or  trade  are  used  in 
contracts,  if  there  be  any  doubts  as  to  the  sense  in  which  they 
are  used  or  ought  to  be  applied,  resort  is  to  be  had  to  the  opinions 
of  professional  men  to  ascertain  the  technical  meaning  attached 
to  them  by  those  conversant  with  their  use.3 

In  an  action  upon  a  covenant  of  warranty  of  the  soundness 
of  a  slave,  the  opinion  of  the  physician  who  attended  the  deceased 
slave  as  to  the  character  and  derivation  of  his  disease,  and  also  the 
statement  of  the  slave  made  to  the  physician  and  others,  as  to 
the  symptoms  and  effects  of  his  disease,  are  competent  evidence.' 

1  Merrit  v.  Lcamen,  2  Selden,  (N.  Y.)  168. 
»  Barren  v.  Cobleigh.  11  N.  H.  557. 
»  Reed  v.  Hobhs,  2  Scam.  297. 
4  Jones  t7.  White,  11  Uamph.  268. 


EXPERTS PROFESSIONAL   OPINIONS.  279 

When  a  witness  in  his  deposition  stated  that  he  attended  a 
certain  negro  "as  a  physician,"  it  was  held  that  this  evidence 
was  sufficient  that  he  was  a  physician,  to  warrant  the  admission 
of  his  opinions  in  evidence  respecting  the  disease  of  the  negro.1 

Physicians  alone  are  permitted  to  give  their  opinion  as  to  the 
existence,  nature  or  extent  of  disease  in  any  person.  As,  when 
it  is  alleged  that  a  slave  was  unsound  at  the  time  of  her  sale, 
in  consequence  of  her  having  the  venereal  disease,  evidence  of 
physicans  is  competent  to  show,  that  the  disease  did  not  at  the 
time  prevail  in  the  neighborhood  in  which  she  was  sold,  but  did 
prevail  in  the  town,  about  seventy-five  miles  distant,  to  which  she 
was  taken  by  the  purchaser  soon  after  the  sale.2 

The  opinion  of  a  teamster,  though  experienced,  respecting  the 
value  of  horses,  harness  and  wagons  which  are  familiar  to  him, 
is  not  evidence,  it  not  being  a  matter  of  science  or  skill.3  Where 
parties  had  contracted  for  repairs  on  a  vessel  to  be  completed  by 
a  certain  time,  and  the  job  not  being  done  until  after  the  time 
specified,  it  has  been  held,  that  witnesses  who  were  not  ship  car- 
penters, but  who  were  ship  masters  and  workmen,  were  competent 
witnesses  to  show  the  difference  between  the  value  of  the  vessel 
thus  repaired,  and  what  it  would  have  been  worth  had  the  vessel 
been  repaired  in  due  time.4  But  the  opinions  of  witnesses  as  to 
the  amount  of  damages  a  tenant  has  sustained  by  the  deprivation 
of,  or  withdrawal  of  water  from  a  tavern  leased  to  him,  are  not 
admissible  in  evidence.5  Opinion  of  bystanders,  that  a  building 
would  have  been  burned  by  a  conflagration,  if  it  had  not  been 
blown  up  to  stay  its  spreading,  is  not  admissible.6  Opinions  of 
witnesses  as  to  the  value  of  a  well-broke  setter  dog,  they  being 
acquainted  with  the  peculiar  qualities  of  setters,  and  their  value 


i  Washington  v.  Cole,  6  Ala.  212. 

»  Ixisk  v.  McDaniel,  13  Ird.  485. 

»  Robertson  v.  Stark,  15  N.  H.  109. 

4  10  Ird.  280. 

«  4  Barb.  Sup.  Ct.  R.  256 ;  Norman  v.  Wells,  17  Wend.  136. 

«  Mayor  of  N.  Y.  v.  Pentz,  24  Wend.  668. 


280  MEDICAL   EVIDENCE. 

in  market,  but  not  with  the  particular  one  in  question,  were  held 
to  be  barely  competent.1  An  officer  in  a  bank,  whose  business  it 
has  been  for  many  years  to  examine  papers  with  the  view  of 
detecting  alterations,  errors  and  spurious  signatures,  may  be  asked 
his  opinion  as  to  the  facts,  whether  alteration  or  error  has  been 
made  in  a  certain  paper.2  It  has  also  been  held  that  where  the 
signature  in  controversy  and  signature  of  the  same  party  admitted 
to  be  genuine  are  before  the  court,  experts  may  be  called  to  give 
their  opinion  on  comparing  the  former  with  the  latter,  whether  the 
one  controverted  is  genuine.3  This  crowds  the  old  rule,  requiring 
an  acquaintance  with  the  handwriting  of  the  individual  whose  sig- 
nature was  to  be  proved  by  one  having  seen  him  write,  or  he  must 
have  corresponded  with  him,  or,  in  some  way  became  intim  itely 
acquainted  with  his  handwriting.  This  rule  is  said  to  be  from  the 
Ecclesiastical  Courts,  and  not  adopted  by  the  Common  law.  A 
witness  m:»y  give  an  opinion  as  to  whether  an  attachment  existed 
between  the  parties,  if  he  had  opportunity  of  judging,  from  a 
series  of  instances,  passing  under  his  observation,  which  he  could 
not  well  detail  to  a  jury.4 

"When  such  evidence  is  allowed,  courts  and  referees  must 
exercise  a  discretion  and  control  as  to  the  number  of  witnesses 
whose  opinions  will  be  heard,  or  such  examinations  will  at  times 
be  nearly  interminable.  And  that  such  a  power  exists  in  all 
judicial  tribunals,  admits,  in  my  opinion,  of  as  little  doubt  as 
that  it  was  discreetly  exercised  in  this  instance."5 

The  preceding  cases  have  been  given,  that  the  general  scope  and 
boundaries  of  this  kind  of  evidence  may  be  clearly  understood. 

The  testimony  of  medical  men  as  such,  is  purely  that  of 
experts.  It  is  perhaps  the  most  important  of  this  class  of  evi- 
dence, and  the  physician  or  surgeon  is  very  properly  confined  to 

1  23  Wend.  354. 

2  Pate  v.  People,  3    Oilman,  644. 

3  Hick  v.  Persons,  19  Ohio,  426. 

4  McKee  v.  Nelson,  4  Cowen,  355. 
6  Sizes  v.  Burt,  4  Demo,  428. 


EXPERTS — PROFESSIONAL   OPINIONS.  281 

the  science  and  learning  of  bis  profession  when  upon  the  stand 
•as  a  professional  witness.  A  party  can  not  ask  the  professional 
witness  his  opinion  upon  any  matter  except  one  of  skill  and 
science.  In  the  case  of  the  People  v.  Eodine,1  it  appeared  in 
evidence,  that  the  dwelling  house  occupied  by  the  deceased  had 
been  discovered  to  be  on  fire ;  that  after  the  fire  was  extinguished, 
her  dead  body  was  discovered  amid  the  rubbish,  in  one  corner  of 
the  kitchen  where  her  bed  had  stood,  and  where  she  had  been 
accustomed  to  sleep ;  that  the  fire  had  been  in  that  part  of  the 
house,  and  that  a  hole  had  been  burned  through  the  floor  in  that 
corner  of  the  room,  and  that  the  fire  had  extended  up  the  side 
Avails  of  the  room,  had  consumed  the  bed  and  bedding,  and  partly 
destroyed  the  bedstead ;  that  the  heap  of  rubbish  among  which 
the  body  had  been  found,  consisted  of  bricks  and  mortar  from 
the  wall, — of  partially  destroyed  pumpkins  and  onions,  which  had 
been  kept  under  the  bed, — of  the  bedstead  and  of  the  cinders 
from  the  bed,  bedding  and  other  articles  which  had  been  entirely 
consumed;  that  several  physicians  had  made  a  post  mortem 
examination  of  the  body,  and  had  given  it  as  their  opinion  that 
the  body  had  been  dead  before  it  had  been  subjected  to  the  action 
of  fire,  for  the  reason  among  others,  that  portions  of  the  body  had 
been  protected  and  had  not  suffered  at  all  from  the  action  of  the 
fire,  which  could  not  have  happened  unless  the  body  had  lain 
perfectly  still  during  the  continuance  of  the  fire.  Upon  the 
•cross-examination  of  one  of  these  physicians,  the  counsel  for  the 
prisoner  asked  the  following  question :  "  Would  not  almost  any 
protection  and  stillness  of  the  body  be  accounted  for,  on  the  sup- 
position that  the  bed-cords  on  the  back  of  the  bed  were  burned 
off  and  the  body  let  down,  and  that  then  the  bed  had  fallen  upon 
it  before  life  was  entirely  extinct  ?"  which  question  was  objected 
to  by  the  counsel  for  the  prosecution  and  excluded  by  the  court, 
and  exception  was  taken  by  the  counsel  for  the  prisoner  and 
carried  to  the  Supreme  Court  That  court  held :  "  The  question 

1 1  Donio,  288. 


282 

put  to  one  of  the  physicians  on  his  cross-examination  by  the 
prisoner's  counsel,  was,  in  my  opinion,  correctly  overruled.  This 
witness  and  other  physicians  had  made  a  post  mortem  examination 
of  the  person  alleged  to  have  been  murdered,  and  they  gave  it  as 
their  opinion,  that  the  death  had  preceded  the  action  of  fire  on 
the  body.  This  opinion,  as  is  stated  in*  the  bill  of  exceptions, 
was  founded  on  the  reason,  among  others,  that  portions  of  the 
body  which  had  been  protected  by  covering  upon  them,  'had  not 
suffered  at  all  from  the  action  of  the  fire.' 

These  physicians  reasoned  as  other  men  would,  that  the  body 
of  a  living  person  could  hardly  remain  quiet  under  the  action- 
of  fire,  and  that  its  convulsed  and  violent  movements  would  1  e 
apt  to  displace  any  covering  which  might  be  upon  different  parts 
of  it;  and  that  to  suppose  life,  in  this  instance,  had  been  des- 
troyed by  the  fire,  was  wholly  inconsistent  with  the  condition  of 
the  body  as  found,  certain  parts  of  it  protected  by  covering  not 
having  been  at  all  affected  by  the  fire.  Hence  the  opinion  which 
was  expressed,  that  death  must  have  preceded  the  fire,  and  was 
not  caused  by  it. 

But  this  was,  in  no  proper  sense,  a  question  of  professional 
skill  or  science.  An  unlearned  man  of  sense  would  have  reasoned 
as  the  physicians  did.  Having  ascertained  that  certain  parts  of 
the  body  which  were  protected  by  what  had  casually  fallen  upon 
them,  were  not  affected  by  the  fire,  although  most  of  the  body 
was  consumed  by  it,  he  would  have  inferred,  as  they  did,  that 
death  preceded  the  fire.  Nor  was  the  particular  question  put  to 
the  witness,  and  which  the  court  excluded,  one  of  skill  or  science,, 
or  which  should  have  been  allowed  to  be  answered  on  that  princi- 
ple. It  was,  beside,  merely  specu'ative  and  hypothetical,  based 
on  successive  suppositions,  which,  it  is  not  too  much  to  say,  were 
in  the  highest  degree  improbable.  Counsel  were  of  course  at 
liberty  to  argue  in  this  manner  to  the  jury,  and  they  would  judge 
how  far  the  explanation  thus  attempted  to  be  given,  was  satisfac- 
tory to  their  minds ;  but  it  was  not  a  subject  which  science  or 
the  skill  of  a  physician  could  better  solve  than  the  good  sense  of 
an  unlearned  jury." 


EXPERTS PROFESSIONAL   OPINIONS.  28S- 

As  in  the  case  of  competent  knowledge,  or  the  ordinary 
knowledge  required  at  the  hand  of  the  surgeon  and  physician, 
so  with  the  expert,  as  to  what  degree  of  knowledge  will  constitute 
him  an  expert.  The  means  of  obtaining  the  special  knowledge  in 
different  locations,  being  different,  the  standard  of  qualification 
required  by  the  court  is  also  different.  That  degree  of  information 
that  may  qualify  a  physician  to  give  evidence  as  an  expert  in  an 
alleged  case  of  poisoning  by  strychnine,  in  the  State  of  Iowa, 
would  be  deemed  altogether  insufficient  in  the  city  of  New  York, 

This  very  point  has  been  passed  upon  by  the  Supreme  Court 
of  Iowa,  in  a  case  just  reported. 

THE  STATE  OF  IOWA  v.  HIXKLE,  6  Iowa  R.  380. 

In  this  case,  the  defendant  was  charged  with  the  murder  of  his 
wife,  committed  by  means  of  strychnine.  The  State  introduced 

two  witnesses,  Drs.  S and  F ,  as  experts,  inexperienced  in 

chemical  analysis,  to  testify  as  to  the  tests  applied  in  the  chemi- 
cal analysis  made  of  the  stomach  of  the  deceased,  and  of  the 
tests  usually  applied  for  detecting  the  existence  of  poison  in 
such  cases.  The  court  held : 

WRIGHT,  C.  J. — Two  physicians  were  called,  and  testified  as  to* 
the  tests  applied  in  the  chemical  analysis  made  of  the  stomach 
of  the  deceased,  and  also  of  the  tests  usua'ly  applied  for  detect- 
ing the  existence  of  poison  in  such  cases.  Both  of  them  testified 
that  they  were  practicing  physicians.  One  of  them  stated  that  he 
was  not  a  professional  chemist,  but  understood  some  of  the  prac- 
tical details  of  chemistry, — that  portion,  at  least,  which  pertained 
to  his  profession, — that  he  had  no  practical  experience  in  the 
analysis  of  poisons,  until,  in  connection  with  Dr.  Francis,  he  ana- 
lyzed the  contents  of  the  stomach  of  the  deceased ;  that  since 
that  time  he  had  conducted  experiments  upon  a  small  scale;  and 
that  he  was  previously  acquainted  with  the  means  of  detecting 
poisons,  and  had  since,  had  some  experience  in  that  way.  The 
other  testified  that  he  was  not  a  practical  chemist ;  that  he  did  not 
follow  the  science  as  a  profession;  that  he  understood  tli°  chemical 


284  MEDICAL   EVIDENCE. 

tests  by  which  the  presence  of  strychnine  can  be  detected ;  that 
he  professed  to  understand  the  principles  of  chemistry  as  laid 
down  in  the  books  on  that  science  ;  th.it  he  never  experimented, 
with  a  view  to  detect  strychnine  by  chemical  tests ;  that  he  had 
seen  experiments  by  professors  of  chemistry ;  and  that  there  was 
one  test  much  relied  on,  the  trial  of  which  he  had  witnessed. 
Defendant  objected  to  these  witnesses  as  incompetent,  and  now 
urge  that  they  did  not  show  themselves  possessed  of  the  requisite 
professional  skill. 

We  think  they  were  competent  witnesses.  It  is,  of  course, 
desirable  that  great  caution  should  be  exercised  in  conducting 
experiments  of  this  character,  and  that  the  most  skillful  profes- 
sional aid  should  be  secured.  If  conducted,  however,  by  such  as 
have  not  had  experience,  or  by  those  who,  though  not  practical 
chemists,  give  their  opinions  from  knowledge  derived  from  the 
books  upon  that  science,  such  opinion  would  be  entitled  to  less 
weight  than  if  given  by  a  practical  chemist, — he  who  bases  his 
conclusions  upon  experience  as  well  as  books.  The  means  of 
knowledge  are  proper  to  be  considered  by  the  jury,  and  they 
should  give  or  withhold  credence  in  the  opinion  given,  as  they 
may  believe  the  expert  qualified 'to  speak  more  or  less  intelli- 
gently and  understandingly.  But  to  say  that  none  shall  be  per- 
mitted to  give  their  opinions,  except  those  of  the  highest  pro- 
fessional skill,  or  those  who  have  given  their  lives  to  chemical 
experiments,  would,  in  this  country  at  least,  render  it  impossible, 
in  most  cases,  to  find  the  requisite  skill  and  ability.  This  seems 
to  have  been  the  view  taken  of  the  question  by  the  court  below. 
The  jury  was  very  fully  and  particularly  instructed  as  to  the 
weight  to  be  given  to  this  character  of  testimony,  and  the  con- 
siderations which  should  enter  into  their  deliberations  in  weighing 
the  same.  We  can  not  conceive  how  the  jury  could,  under  the 
circumstances,  have  been  misled,  or  the  defendant  prejudiced. 


SEE  A  PPEXDIX,  page  588,  for  full  Notes  on  this  Chapter. 


CHAPTER  XIX. 

HISTORY  OF  MEDICAL  EVIDENCE. 

THE  importance  of  medical  testimony  in  elucidating  and  fixing 
the  character  and  extent  of  crime  and  the  degree  of  its  punish- 
ment, is  very  properly  becoming  every  year  more  apparent  and 
better  understood.  Although  medicine  itself  is  as  old  as  history, 
the  learning  of  that  science,  in  its 'application  to  jurisprudence,  is 
of  but  very  recent  date.  Not  until  the  time  of  the  Emperor 
Charles  the  Fifth,  of  Germany,  was  there  ever  a  recognition, 
publicly,  of  the  value  of  Medical  Evidence.  In  the  "  Caroline 
Code,"  framed  at  Ratisbon,  in  1532,  it  was  ordained,  that  the 
opinion  of  medical  men  should  be  received  in  cases  of  death  by 
violent  or  unnatural  means,  wl^ere  there  was  the  least  suspicion 
of  criminal  agencies  having  been  used. 

Thus  from  a  civilian, — one  of  the  greatest,  it  is  true, — first 
sprang  the  idea,  or  at  least  the  application  of  the  idea  of  using 
the  researches  of  the  anatomist,  physiologist,  the  accoucheur  and 
the  chemist,  in  explaining  the  causes  of  disease  and  death  in  im- 
unusual  cases,  thus  detecting  the  criminal,  guilty  of  crimes  that 
had  before  been  perpetrated  with  impunity. 

The  publication  of  this  code  encouraged  the  members  of  the 
medical  profession  to  more  fully  qualify  themselves  for  the  new 
duties  thus  recognized  and  imposed.  The  result  was,  that  many 
books  appeared  very  soon  upon  the  subject  of  Medical  Jurispru- 
dence, and  the  importance  of  Medical  Evidence.1 

At  first  the  surgeon  only  was  permitted  to  give  testimony  in 


1  Paris,  Med.  Jurisprudence,  page  10. 

(285) 


286  MEDICAL   EVIDENCE. 

courts  of  justice.  Thus,  in  1606,  Henry  the  Fourth  authorized 
his  first  physician  to  appoint  two  surgeons  in  every  city  and 
town,  wh  »se  duty  it  should  be  to  examine  all  wounded  or 
murdered  persons,  and  report  the  facts  in  the  case ;  and  as  late 
as  1C 67  no  such  report  was  valid,  unless  at  least  one  surgeon 
sanctioned  it.  In  1692  it  was  admitted  that  physicians  also 
knew  something  about  medical  matters  that  might  be  auxiliary 
to  jurispridence,  and  by  law  they  were  permitted  to  give  testi- 
mony in  the  same  case  with  surgeons. 

During  the  eighteenth  century  a  large  number  of  able  writers 
devoted  their  lives  to  Medico-legal  investigations,  in  Italy,  France 
.and  Germany.  The  Germans  have  especially  excelled  in  this 
department,  and  furnished  extensive  and  important  contributions 
to  its  stores  of  learning,  from  Henke  and  Gmelin  to  Wagner  and 
Casper.  The  proverbial  patient  German  research,  is  not  perhaps 
better  illustrated  in  their  theology  and  metaphysics,  than  in  their 
investigations  in,  and  contributions  to  Medical  Jurisprudence. 

A  list  of  distinguished  names  also  adorn  the  history  of  the 
science  in  France,  headed  by  the  celebrated  Ambrose  Pare,  and 
culminating  in  the  distinguished  Orfila. 

England  has  not  been  noted  for  her  writers  on  Medical  Juris- 
prudence until  quite  recently.  Dr.  Farr,  in  about  the  year  1790, 
discussed  the  subject  in  a  little  work  on  the  "  Elements  of  Foren- 
sic Medicine."  Dr.  John  Gordon  Smith  did  much  to  advance  the 
science.  He  wrote  an  excellent  treatise  on  Medical  Evidence 
generally,  without  however  being  very  close  or  definite,  the  only 
work,  perhaps,  ever  published  exclusively  on  that  subject.  It 
has  not  been  republished  in  this  country,  and  is  out  of  print. 
Recently  the  very  able  works  of  Dr  Guy,  Mr.  Taylor  and  Chris- 
tison,  abundantly  atone  for  past  delinquencies  in  this  field. 

In  the  United  States  the  distinguished  Dr.  Rush,  of  Philadel- 
phia, ever  awake  to  the  advancement  of  his  favorite  science  in  all 
its  departments,  called  the  attention  of  his  countrymen  and  pro- 
fessional brethren  to  the  importance  of  this  subject  in  an  intro- 
ductory lecture  in  the  University  of  Pennsylvania,  in  1810.  ID 


HISTORY    OF   MEDICAL   EVIDENCE.  287 

the  conclusion  of  that  lecture,  he  says :  "  To  animate  you  to 
apply  to  the  study  all  of  the  subjects  enumerated  in  the  introduc- 
tion to  our  lecture,  I  beg  you  to  recollect  the  extent  of  the  ser- 
vices you  will  thereby  be  enabled  to  render  to  individuals  and 
the  public;  fraud  and  violence  may  be  detected  and  punished; 
unmerited  infamy  and  death  may  be  prevented ;  the  widow  and 
the  orphan  may  be  saved  from  ruin ;  virgin  purity  and  innocence 
may  be  vindicated ;  conjugal  harmony  and  happiness  may  be 
restored;  unjust  and  oppressive  demands  upon  the  service  of 
your  fellow  citizens  may  be  obviated ;  and  the  sources  of  public 
misery  in  epidemic  diseases  may  be  removed  by  your  testimony 
in  courts  of  justice." 

The  importance  of  medical  knowledge  in  legal  investigations, 
from  the  time  of  Dr.  Rush  until  the  present,  has  gradually,  but 
steadily  been  increasing,  till  it  is  now  acknowledged  by  the  legal 
profession  and  the  public.  In  1823,  Dr.  T.  Romeyn  Beck,  pub- 
lished the  first  edition  of  his  Medical  Jurisprudence.  It  was  the 
first  American  work  worthy  the  subject  Favorably  received 
by  both  the  medical  and  legal  professions  from  the  outset,  it  has 
grown  from  a  moderate  sized  work  to  two  stout  volumes.  It  is 
a  compendium  or  encyclopedia  of  information  of  all  kinds  con- 
nected with  the  subject  of  Medical  Jurisprudence.  In  patient 
research  it  can  not  be  surpassed,  and  in  extent  of  detail  it  is 
complete,  if  not  even  burdensome. 

Dr.  I.  Ray,  about  the  year  1850,  published  his  work  on 
Insanity.  It  at  once  became  a  standard  work  on  the  subject. 
In  originality  of  matter,  and  as  the  embodiment  of  extensive  per- 
sonal observation  and  experience ;  in  the  compactness  of  argument, 
and  beauty  of  style,  the  work  is  unequalled,  notwithstanding 
some  of  his  observations  and  theories  may  be  open  to  criticism. 

The  subject  of  insanity  is  surrounded  with  almost  insuperable 
difficulties,  but  in  the  hands  of  this  great  master,  it  becomes 
more  intelligible,  and  the  claims  of  the  poor  unfortunate  maniac 
are  earnestly  and  eloquently  advocated  and  c  ired  for. 

Prof.  Dean,  of  Albany,  has  published  a  very  thorough  and 


288  MEDICAL   EVIDENCE. 

practical  work  on  the  subject  of  forensic  medicine.  The  subject, 
in  his  hands,  is  as  much  condensed  as  possible,  making  the  volume 
of  convenient  size. 

The  latest  work  upon  the  subject,  and  in  some  respects  the 
best,  is  the  able  compilation  of  Wharton  and  Stille. 

Notwithstanding  the  existence  of  all  these  valuable  treatises  on 
Medical  Jurisprudence,  it  must  be  admitted  the  subject  is  still  in 
its  infancy.  80  far  as  the  practical  application  of  its  principles 
is  concerned,  it  has  not  yet  assumed  the  high  and  desirable 
position  of  a  specialty  in  our  colleges  of  law  and  medicine, 
which  its  importance  demands.  Eminent  physicians,  like  Dr. 
Reese,  of  New  York,  are  advocating  more  prominence  for  these 
studies  in  our  colleges.  To  the  medical  student,  it  is  as  much  a 
necessity  as  chemistry  or  anatomy.  To  the  lawyer,  it  is  an  im- 
portant part  of  the  great  subject  of  evidence.  It  is  desirable  that 
some  leading  university  will  soon  establish  a  chair  devoted  to  the 
subject.  The  Fox  ministry  of  1806  were  ridiculed  and  reviled, 
because  they  appointed  the  celebrated  Dr.  Duncan  to  the  first 
professorship  of  forensic  medicine  in  the  British  University. 
But  now,  no  professorship  is  more  honorable  or  more  highly 
valued  in  Great  Britain  than  that  of  Medical  Jurisprudence. 
New  truths  and  new  application  of  old  ones  always  meet  with 
opposition ;  and  that  opposition  not  unfrequently  calls  to  its  aid 
ridicule.  This  has  been  encountered  and  overcome. 

One  important  cause  of  the  change  of  opinion,  or  rather  the 
recent  appreciation  of  medical  testimony  in  Medico-legal  questions 
is,  that  it  has  been  so  often  demonstrated,  that  without  it  many 
of  the  most  startling  and  dangerous  crimes  would  go  undiscovered 
and  unpunished. 

Questions  of  identity  in  cases  of  violent  death,  and  when  there 
is  exhumation,  can  seldom  be  settled  satisfactorily  without  the  aid 
of  the  medical  man.  His  peculiar  knowledge  in  regard  to  the 
peculiarity  of  sex,  the  facilities  his  scientific  knowledge  affords 
for  accounting  for  a  change  in  the  color  of  the  hair,  and  the 
probable  stature  of  the  body,  when  but  part  of  the  body  is  found, 


HISTORY    OF   MEDICAL   EVIDENCE.  289 

render  this  knowledge  indispensable  in  such  cases.  The  physi- 
cian's knowledge  of  the  peculiarities  of  formation  in  individuals, 
learned  in  his  treatment  of  them,  gives  him  an  advantage  of 
knowledge  over  the  unprofessional.  Thus  in  the  year  1 8 1 4,  Dupuy- 
tren  identified  the  person  of  a  murdered  man,  by  observing  the 
malformation  of  the  hip  joint  which  he  had  been  called  upon 
before  to  examine.  The  body  of  the  unfortunate  Maria  Martin 
was  identified  eleven  months  after  her  death  by  the  absence  of 
certain  teeth  from  the  upper  and  lower  jaw,  and  by  adhesions  of 
the  pleura,  and  other  signs  of  inflammation  occurring  before  death, 
it  being  proved  by  medical  attendants  that  she  had  suffered  from 
inflammation  of  the  chest  shortly  before  her  mysterious  disappear- 
ance. The  body  of  Dr.  Parkman,  murdered  by  Prof.  Webster, 
was  identified  in  part  by  the  dentist  who  had  taken  a  cast  of  his 
lower  jaw  some  years  before  his  death,  which  cast  corresponded 
exactly  with  the  fragments  found  in  the  stove  where  the  head 
had  been  consumed.  The  exact  stature  of  the  remains  of  Dr. 
Parkman  were  also  determined  by  medical  men,  to  a  certainty, 
notwithstanding  part  of  the  lower  extremities  were  completely 
destroyed.  The  body  of  Charles  the  First  was  identified  when 
exhumed,  many  years  after  his  death,  by  the  smooth  correspond- 
ing surfaces  of  the  fourth  cervical  vertebra,  showing  that  they  had 
been  separated  by  a  heavy,  sharp  instrument.  Orfila  claims 
that  the  medical  man  can,  with  his  table,  take  any  one  of  the 
cylindrical  bones  of  the  body  and  determine  almost  exactly  the 
highth  of  the  body  to  which  the  bone  belongs.  Give  him  the 
length  of  the  femur,  or  the  humerus  especially,  and  he  will  give 
the  stature  of  the  body. 

The  physician  will  determine  the  age  of  a  deceased  person 
with  considerable  certainty,  from  the  process  of  ossification,  especi- 
ally during  the  early  and  latter  periods  of  life.  In  extreme  mal- 
formation, the  sex  can  only  be  determined  by  the  medical  man. 

The  ability  of  medical  men  to  determine  age  and  sex  when 
all  other  means  fail,  and  thereby  insure  the  punishment  of  crime, 
is  illustrated  in  a  case  reported  in  France.     In  1821,  a  woman 
19 


290  MEDICAL   EVIDENCE. 

living  in  the  city  of  Paris,  disappeared  under  suspicions  circum- 
stances. Several  persons  were  suspected  of  having  killed  her. 
They  were  arrested  and  tried,  but  for  want  of  evidence  were  set 
at  liberty.  Some  eleven  years  afterward,  a  well-directed  research 
was  made  by  Orfila,  Mark,  Barrael,  Chevallier  and  Boys  de 
Soury,  on  the  remains  of  a  person  buried  in  a  garden,  by  which 
evidence  was  brought  out  to  convict  the  parties  originally  sus- 
pected. 

The  points  the  investigating  committee  settled  to  the  satisfac- 
tion of  the  court  and  all  others,  were :  that  these  bones,  which  had 
been  buried  eleven  years,  were:  1st.  The  bones  of  a  human 
skeleton;  2d.  That  the  skeleton  was  that  of  a  female;  3d.  That 
the  female  had  attained  the  age  of  from  sixty  to  seventy  years ; 
4th.  That  the  stature  was  about  four  feet  eight  or  nine  inches ; 
5th.  That  the  hair  of  the  female,  which  was  of  a  bright  blonde  color 
in  youth,  was  mixed  with  gray  at  the  time  of  her  death;  6th. 
That  the  hands  were  small ;  7th.  That  during  life,  the  bones  had 
never  suffered  any  injury ;  8th.  That  this  woman  died  of  strangu- 
lation, and  that  the  act  was,  to  all  appearances,  homicidal ;  9th. 
That  the  body  must  have  lain  several  years  in  the  earth. 

Thus  was  science  vindicated,  and  justice  satisfied  by  the  punish- 
ment of  the  guilty,  by  the  evidence  of  these  scientific  men,  after 
eleven  years  had  thrown  oblivion  over  all  the  circumstances  con- 
nected with  the  immediate  death.  Many  cases  are  reported  where 
medical  testimony  has  exculpated  and  relieved  from  danger  and 
death  the  innocent  wronsrfullv  accused  and  condemned. 

^j  *> 

A  Frenchman,  by  the  name  of  Montbailly,  and  his  wife,  were 
tried  by  the  Superior  Court  of  Arras,  and  condemned  to  be  broken 
on  the  wheel,  and  Montbailly  was  actually  executed  in  that  way, 
for  the  murder  of  a  widow  Montbailly,  aged  sixty.  The  wife 
claimed  delay  on  account  of  her  pregnancy,  which  was  granted. 
In  the  mean  time,  the  celebrated  physician,  Louis,  was  consulted 
in  regard  to  the  matter,  and  the  result  of  a  long  and  careful  in- 
vestigation was,  that  the  Montbaillys  were  probably  innocent,  as 
the  e  was  no  sufficient  evidence,  from  the  appearance  of  the  body 


HISTORY    OF    MEDICAL    EVIDENCE.  [  291 

after  death,  of  homicide.  The  woman  was  saved  and  set  at 
liberty,  and  the  memory  of  Montbailly  exonerated. 

A  case  is  reported  in  the  London  Lancet,  where  one  brother 
was  supposed  to  have  killed  another  brother,  and  the  crime  was, 
after  many  years,  thought  to  be  discovered  by  the  accidental 
discovery  of  the  bones.  They  were  examined  by  a  surgeon,  and 
found  to  be  those  of  an  aged  female. 

Thomas  Bowenman  was  about  being  condemned,  in  1800,  in 
England,  for  the  murder  of  a  bastard  child,  by  pushing  an  awl 
into  its  head.  The  body  was  disinterred  and  examined  by  the 
ooroner,  when  the  identical  hole  was  found  made  by  the  awl,  as 
the  witness  had  stated.  Mr.  Sheldon,  a  surgeon  of  Exeter,  hav- 
ing he-ird  of  the  case,  volunteered  and  attended  the  grand  jury. 
He  examined  the  skull,  and  was  satisfied  the  hole  was  a  natural 
foramen,  through  which  a  vein  passed.  He  satisfied  the  jury  of 
the  truth  of  this,  by  pointing  out  the  enamel  around  the  hole, 
which  could  not  have  been  there  if  made  by  the  awl.  He  exhibi- 
ted several  skulls,  all  having  similar  perforations,  and  each  hole 
having  a  small  channel,  and  the  rim  or  edge  of  the  hole  being 
smooth  and  polished. 

The  noted  Eugene  Aram,  who  serves  as  one  of  Bulwer's 
heroes,  was  condemned  to  death  for  the  murder  of  Clarke,  after  a 
very  able  defense,  on  the  testimony  of  Mr.  Lacock,  a  celebrated 
surgeon.  He  said  in  evidence,  that  the  fracture  in  the  skull 
could  not  be  the  result  of  natural  decay,  and  that  it  was  not  a 
Tecent  fracture  by  the  instrument  with  which  it  had  been  disin- 
terred, but  was  of  many  years  standing.  The  skull  had  been 
buried  thirteen  years.  Though  convicted,  his  guilt  was  doubted 
by  many,  yet,  before  execution,  he  confessed  it,  thus  completely 
justifying  the  conclusions  of  the  medical  witness. 

In  the  year  of  1835,  in  Bordeaux,  a  son  was  apprehended  for 
the  murder  of  his  father,  and  was  only  saved  by  medical  testi- 
mony when  all  the  circumstances  of  the  case  were  against  him. 
The  pistol  with  which  the  old  man  was  killed,  was  found  still  in 
his  hand,  although  the  upper  part  of  his  head  had  been  blown 


292  MEDICAL   EVIDENCE. 

off,  and  in  a  position  where  the  force  of  gravity  would  have  taken 
it  to  the  floor.  It  was  considered  probable  that  the  son  had  thus 
placed  the  pistol  in  order  to  give  the  idea  of  suicide.  There 
never  had  been  any  difficulty,  as  was  known,  between  the  parties, 
though  there  was  some  property  involved  that  would  descend  to 
the  son.  The  old  man  was  subject  to  fits  of  insanity ;  still  the 
position  of  the  pistol  was  against  the  son.  The  medical  testi- 
mony rebutted  the  idea,  by  stating  what  is  well  known  to  anato- 
mists and  physiologists,  that  the  contraction  of  the  fingers  often 
remains  for  a  considerable  length  of  time  after  a  sudden,  violent 
death,  whereas,  in  this  case  especially,  the  weapon  was  firmly 
held.  It  was,  therefore,  pronounced  a  case  of  suicide,  and  the 
defendant  discharged. 

This  class  of  cases  having  impressed  upon  the  unprofessional, 
that  there  can  not  be  more  important  evidence,  —  evidence 
fraught  with  greater  consequences  to  life,  liberty,  reputation  and 
property, — all  the  dearest  interests  of  man, — than  that  of  the 
medical  witness,  and  that  his  position  is  important. 

Medical  evidence  has  thus  forced  itself  upon  the  attention  of 
society  and  the  courts,  until  its  claims  are  about  to  be  realized. 

NOTE. — Following  the  practice,  are  several  chapters  on  Evidence,  its  princi- 
ples and  applicatiOD  We  have  in  this  department  the  same  assurance  of  the 
fidelity  of  the  author  as  in  the  preceding.  To  the  physician  these  chapters  are  of 
special  interest. 

In  no  department  of  prof  essional  duty  does  he  meet  with  so  many  and  so  great 
embarrassments,  so  much  often  to  regret  or  to  be  mortified  about,  as  in  that  which 
connects  him  with  the  administration  of  the  criminal  law;  and  grateful  must  he 
be  to  him  who  has  done  so  much  to  make  these  evils  less.  Dr.  Elwell  has  labored 
to  make  clear  to  the  medical  man  this  very  obscure  subject.  He  knows  what  the 
medical  man  most  needs  in  preparation  for  his  public  duties.  His  two  profes- 
sions have  taught  him  what  those  duties  are,  and  what  is  required  in  their  per- 
formance. Boston  Med.  &  Surg.  Journal. 


CHAPTER  XX. 

THE  IMPORTANCE  OF  MEDICAL  EVIDENCE. 
"CUILIBET  IN  SUA  ARTE  PERITO  EST  CREDENDUM."    Co.  Litt.  125. 

No  person,  whether  professional  or  unprofessional,  educated  or 
otherwise,  is  properly  qualified  to  appear  in  a  court  of  justice  as 
a  witness,  with  credit  to  himself  or  justice  to  the  cause  he  would 
elucidate,  without  a  general  knowledge  of  the  duties,  rights  and 
privileges  that  surround  him  while  occupying  so  important  a 
position. 

While  but  little,  comparatively,  is  expected  of  timid  ignorance 
4ind  weak  and  trembling  inexperience;  much,  very  much,  is  right- 
fully required  and  looked  for  from  the  learned  and  public  man. 
If  the  former  are  able  to  command  presence  of  mind  and  lan- 
guage sufficiently  intelligible  to  be  understood,  it  is  as  much  or 
more  than  is  expected  of  them.  Not  so.  however,  with  the  man  of 
public  and  professional  pretensions.  He  is  measured,  properly, 
by  a  different  and  more  exact  and  rigid  rule.  If  he  fails  to  fur- 
nish good  measure,  he  will  most  certainly  leave  the  stand  dis- 
graced, and  his  friends  chagrined  and  disappointed. 

There  is  no  situation,  perhaps,  where  the  professional  medical 
man  can  be  placed,  wherein  he  will  be  subjected  to  a.  more 
thorough,  rigid  and  severe  criticism,  as  to  what  he  says,  how  he 
says  it,  and  the  reason  why  he  says  it,  with  all  the  influences 
that  may  have  a  bearing  on  what  he  says,  than  as  a  medical 
witness  in  a  court  of  justice,  under  the  eagle  eye  of  an  able  judge, 
the  severe  and  interested  scrutiny  of  counsel,  and  the  candid, 
impartial  observation  of  a  jury.  This  is  not  only  forcibly  true 
as  to  the  position  of  the  medical  witness,  but  is  almost  savagely 

(293) 


294  MEDICAL  EVIDENCE. 

so.  On  the  one  hand,  the  party  by  and  for  whom  he  is  called, 
seems  to  expect  that  he  will  say  nothing  that  will  damage  him, — 
that  the  weight  of  his  character,  professional  reputation,  position, 
influence, — every  thing,  will  all  go  to  favor  his  interests ;  while 
on  the  other  hand,  this  very  weight  of  character,  influence,  etc., 
will  arouse  the  resisting  energies  of  the  opposite  party,  to  contra- 
dict, break  down,  and  destroy  the  effect  of  such  testimony.  An 
important  witness  thus  placed  between  two  fires,  as  it  were, — a 
conspicuous  mark  as  he  is, — will  do  well  if  he  comes  off  without 
being  badly  wounded. 

One  important  cause  of  much  of  the  unjust  reproach  and 
odium  attaching  to  the  medical  profession,  and  why  empiricism 
and  quackery  flourish,  is,  that  the  peculiar  province  and  duties 
of  the  practitioner  of  medicine  lie  out  of  sight, — hidden  from 
the  world  at  large.  Much  that  is  claimed  as  having  been  accom- 
plished, can  not  be  seen  and  tested  by  a  discerning  public.  Credit 
is  often  given,  therefore,  and  censure  meted  out,  where  they  are 
not  deserved.  The  public  have  no  means  of  determining  just 
what  has  transpired  or  been  done  within  the  private  sanctity  of 
the  bed-chamber. 

The  practice  of  law  in  this  respect  is  the  very  opposite  of 
medicine.  In  that  profession  all  the  duties  of  the  attorney  are 
exposed  to  the  full  gaze  of  the  world, — all  his  acts  are  liable  to  be 
overhauled,  discussed  and  exposed  by  a  court  which  has  not  only 
the  right  to  reprimand  him  if  guilty  of  quackery  or  dishonesty, 
but  the  power  to  throw  him  over  the  bar.  Then  the  bar  of  public 
opinion  is  more  to  be  dreaded  by  him  than  that  of  his  profession, 
if  possible,  because  from  the  publicity  of  all  his  acts,  he  is  very 
soon  assigned  by  the  public  his  proper  position,  both  for  honesty 
and  for  ability.  Had  the  medical  profession  this  ordeal  through, 
which  to  pass,  and  a  tribunal  to  which  it  was  thus  responsible,  and 
by  which  its  members  could  be  called  to  an  account,  charlatanism 
would  soon  be  driven  out  of  the  profession  and  compelled  to  band 
with  pettifoggers. 
•  The  value  of  this  public  position,  as  a  medical  witness,  there- 


"    THE   IMPORTANCE   OF   MEDICAL   EVIDENCE.  295 

fore, — to  one  who  is  equal  to  the  duties  thus  imposed — is  beyond 
estimation.  It  is,  in  fact,  about  the  only  chance  the  medical  man 
has  of  vindicating  a  noble  science,  and  a  noble  manhood.  To 
him  alone  the  court  and  jury  look  for  a  solution  of  the  dark  and 
difficult  problems  of  a  scientific  and  medicinal  nature,  which  they 
are  called  upon  to  examine  and  pass  upon,  and  of  which  they  have 
but  little  or  no  knowledge.  These  questions  are  vast  and  unlimi- 
ted in  their  range,  and  many  of  them  soundless  in  their  depth. 
Whether  the  question  under  investigation  has  reference  to  the 
character  of  a  disease,  or  whether  it  is  not  simulated;  whether  it 
is  one  of  the  thousand  questions  having  a  sexual  bearing ;  or  does 
it  relate  to  the  sanitary  condition  of  society  or  of  towns ;  does  it 
relate  to  the  great  matter  of  life  insurance,  survivorship,  legiti- 
macy, age,  identity,  the  severity  of  punishment,  at  home  or  at 
school,  the  health  of  a  nation  or  the  value  of  a  slave ;  or  is  it 
whether  death  is  real  or  only  apparent; — if  real,  was  it  from 
natural  causes  or  otherwise; — did  the  cause  of  death  proceed 
from  the  deceased,  or  another ; — if  from  another,  was  it  a  homi- 
cide or  an  accidental  death,  and  what  were  the  agents  used  and  the 
circumstances  attending  their  application  ;  if  poison  is  the  agent, 
of  what  kind,  and  to  what  extent  did  it  contribute  to  the  death ; — 
what  natural  disease  is  attended  with  similar  symptoms;  or  is  it 
one  of  the  infinite,  mysterious,  and  most  difficult  of  all  problems, 
— those  relating  to  the  mind ; — in  either  and  all  of  these  cases, 
and  in  many  others,  upon  the  medical  witness  almost  alone  rests 
the  responsibility  of  a  solution. 

There  can  not  transpire  a  business  transaction  of  any  kind,  an 
act  civil  or  criminal,  of  which  courts  have  jurisdiction,  but  what 
may  involve  some  medical  question,  demanding  the  attendance 
and  testimony  of  the  medical  witness ;  because  the  mind  as  an 
element,  must,  of  course,  enter  into  all  accountable  acts,  whether 
of  a  criminal  or  civil  bearing ;  and  whether  the  act  is  rational,  is 
a  question  in  the  main  for  the  physician. 

Thus,  the  highest  interest  of  individuals,  as  well  as  of  whole 
families,  and  even  the  safety  of  society  itself,  depend  constantly 


296  MEDICAL   EVIDENCE. 

and  necessarily  upon  medical  testimony.  Not  only  questions  of 
property  and  life,  but  those  which  are  dearer  and  of  more  value 
than  property  or  life, —  Character  and  Reputation, — are  in  the 
hands  of  the  medical  witness. 

No  class  of  witnesses  dispose  by  their  testimony  of  larger 
amounts  of  money  than  this  class.  The  greatest  fortunes  ever 
collected  together  by  financial  ability,  have  been  distributed  by 
medical  men  upon  the  witness  stand,  in  contests  over  the  validity 
of  wills.  In  the  celebrated  Parrish  will  case,  decided  in  New  York 
city,  December  10, 1857,  by  Judge  Bradford,  a  large  fortune  was 
diverted  from  the  channel  indicated  by  the  testator,  by  medical 
testimony.  The  law  books  are  full  of  illustrations  of  this  fact. 

If  such  is  the  grand  province  of  the  medical  witness,  and  such 
the  importance  of  his  testimony,  how  and  why  is  it  that  he  does 
not  strive  harder  and  more  successfully  to  come  up  to  its  require- 
ments, and  completely  occupy  the  extensive  field  belonging  thus 
exclusively  to  him  ?  And  why  are  not  members  of  the  bar  more 
ready  to  admit  the  great  significance  and  importance  of  this  kind 
of  evidence,  and  treat  it  with  that  consideration  and  respect  its 
merits  demand  ? 

Beside  the  importance  of  Medical  Evidence  to  the  correct 
administration  of  Civil  and  Criminal  Jurisprudence,  the  public 
position  of  the  medical  man  as  a  witness, — a  position  so  much 
dreaded  by  many,  —  may  be  to  him  personally  of  significant 
importance.  Society,  with  her  hundred  eyes,  is  looking  at  him, 
and  listening  to  what  he  says.  Those  who  rely  upon  what  the 
medical  man  says  as  authority  on  medical  matters,  in  their  families, 
await  with  no  less  interest,  when  they  listen  to  him  in  the  court 
room ;  but  with  almost  the  certain  assurance  that  in  the  latter 
case  the  true  value  of  such  confidence  will  be  determined.  The 
physician's  influence  will  be  either  much  stronger  than  before,  or 
it  will  be  annihilated.  While  ignorance  and  deception,  like  death, 
may  be  triumphant  in  the  sick  room  without  being  called  to  an 
account  or  cross-examined,  in  open  court  they  can  find  no  refuge 
or  protection,  but  will  most  certainly  be  exposed. 


THE   IMPORTANCE   OF    MEDICAL  EVIDENCE.  297 

The  physician's  life  is  not  always  seen,  though  it  may  be  felt. 
He  has,  for  this  reason,  comparatively  few  opportunities  to  dis- 
tinguish himself  publicly.  The  lawyer,  on  the  other  hand,  has 
many  As  a  witness,  the  medical  man  has  an  opportunity  to 
show  to  the  world  just  what  his  position  as  a  thinker  is;  just 
what  the  extent  of  his  knowledge,  and  in  what  manner  he  handles 
and  applies  it; — how  he  reasons  upon  the  facts  in  his  possession, 
in  making  up  the  conclusions  he  gives  to  the  jury  as  opinions, 
etc.  In  short,  on  the  witness  stand,  his  weight  is  accurately 
taken,  and  his  proper  place  assigned.  Illustrations  of  this  are 
not  uncommon. 

Prof.   J.  P.  K ,  whose   general   knowledge   and   great 

acquirements  as  a  Naturalist,  render  him  worthy  to  be  called  the 
Humboldt  of  the  West,  was  first  marked  as  a  physician  of  close 
thought  and  of  superior  powers,  upon  the  witness  stand.  Mr. 

W ,  a  celebrated  lawyer,  of  Cincinnati,  being  one  of  the 

counsel  in  the  case,  saw  at  once,  from  the  cool,  clear,  and  logical 
manner  in  which  he  deposed, — defending  and  fortifying  his 
points  fully,  by  the  correctness  of  the  reasoning  that  accompanied 
them, — that  the  witness  was  competent  to  fill  a  Professor's  Chair, 
and  immediately  on  his  return  to  Cincinnati,  called  him  to  that 

position,  in  the  Ohio  Medical  College,  of  which  Mr.  W was 

a  leading  trustee.     Prof.  K was  at  the  time  a  country 

physician,  and  generally  unknown.  The  ability  of  the  witness, 
and  the  judgment  of  the  lawyer  have  been  amply  illustrated  and 
confirmed  by  the  long  and  distinguished  professional  life,  in  the 
higher  walks  of  the  profession  and  its  sister  sciences,  of  the  dis- 
tinguished professor. 

A  distinguished  living  politician,  now  the  popular  governor  of 
•a  great  Western  State,  a  few  years  ago,  was  practicing  medicine 
amid  the  fogs  and  fevers  of  the  Mississippi  valley,  in  obscurity 
and  poverty ;  when  he  was  brought  into  prominent  notice,  and 
his  talents  admitted,  nearly  in  the  same  way  as  was  Prof. 

K .      Thus,  when   the   opportunity  presented   itself,  as  it 

always  will,  they  were  found  ready  and  able  to  improve  it. 


298  MEDICAL   EVIDENCE. 

True  greatness  will  always  be  acknowledged  sooner  or  later. 
Sometimes  it  is  late,  because  an  opportunity  is  wanting  for  its 
conspicuous  development.  During  a  lifetime,  however,  that  op- 
portunity will  occur.  To  the  physician,  as  to  all  others,  if  he  is 
qualified  for  his  duties, — truly  representing  his  noble  profession, — 
if  he  possesses  the  real  elements  of  solid  knowledge  and  worth, — 
there  is  a  time  when  these  qualifications  will  be  proclaimed  and 
acknowledged. 

Let  every  member  of  the  profession  of  medicine,  who  would 
defend  its  claims  to  honor  and  usefulness,  and  win  for  himself  a 
distinguished  position  in  its  ranks,  and  in  the  world,  prepare  him- 
self well  and  thoroughly  to  mount  upon  the  witness  stand  with 
a  firm,  elastic  step,  feeling  an  assurance  that  it  is  the  most 
favorable  and  distinguished  position  he  can  occupy  as  a  representa- 
tive of  his  profession  or  of  his  own  acquirements. 

To  successfully  fulfill  the  expectation  of  friends, — to  vindicate 
an  honorable  profession  from  unjust  reproach, — to  render  the 
malice  or  opposition  of  enemies  and  opponents  harmless, — to 
sustain  reputation  and  self  respect,  and  above  all,  to  vindicate 
truth,  by  contributing  to  the  ends  of  justice ;  the  professional 
medical  witness  when  he  appears  upon  the  stand,  must  understand 
well  the  general  rules  of  evidence, — without  their  detail, — that 
govern  him,  and  like  all  other  witnesses  who  appear  as  experts,  he 
must  also  understand  thoroughly  the  specialty  upon  which  he  is 
called  to  express  an  opinion. 

Without  this  knowledge  of  the  general  rules  of  law  that  bear 
upon  him  as  a  witness,  he  is  constantly  liable  to  interruption 
and  reproof,  which  always  embarrass  the  witness,  and  neutralize 
the  effect  of  his  testimony.  With  that  fair  knowledge,  however, 
which  any  intelligent  man  may  obtain  of  the  general  principles 
of  evidence  bearing  upon  him,  a  great  and  constant  source  of  irri- 
tation is  avoided,  and  the  protection  and  respect  of  the  court  and 
counsel  secured.  Without  it,  though  intelligent  in  other  respects, 
discomfiture,  disgrace  and  chagrin  are  almost  inevitable ; — but, 
possessing  this  knowledge  of  his  rights  and  duties  as  a  witness* 


THE   IMPORTANCE   OF   MEDICAL   EVIDENCE. 

and  a  clear  and  thorough  knowledge  of  the  special  matter  he  is 
supposed  to  represent  and  understand  better  than  others,  there  is 
no  position  in  which  he  can  be  placed,  more  favorable  to  a  rich 
harvest  of  honor,  reputation  and  future  success. 

But  above  all  these  considerations,  the  great  cause  of  justice, 
whether  in  criminal  or  civil  cases,  demands,  at  the  hands  of  the 
professional  medical  witness,  a  clear  explanation  and  elucidation 
of  the  matter  in  issue,  if  belonging  to  his  field,  irrespective  of 
the  opinions  of  court,  jury,  attorneys,  society,  or  the  result. 

Any  person  may  be  a  common  witness  when  there  is  no  legal 
disability,  and  testify  as  to  facts,  and  if  there  is  a  willful  misrepre- 
sentation or  a  mistaken  statement,  it  may  be  corrected  by  others ; 
this  is  not  so  easily  done  where  the  point  in  issue  involves 
scientific  knowledge.  In  most  communities,  outside  of  large 
cities,  the  solution  of  this  class  of  problems  depends  upon  a  very 
few,  if  indeed,  upon  more  than  two  or  three.  As  the  medical 
and  surgical  man  is  the  guardian  of  the  people's  health  and  lives, 
in  his  usual  every-day  business,  so  is  he  in  another  equally  im- 
portant sense,  the  protector  of  the  community, — as  well  as  of 
those  indicted  for,  or  charged  innocently  with  crime, — in  the  great 
field  of  Criminal  Jurisprudence,  when  the  subject  relates  to  the 
momentous  questions  of  life,  health  or  death;  subjects,  around 
which  cluster  a  multitude  of  questions  to  be  passed  upon  and 
settled  alone  in  courts  of  justice,  on  the  testimony  of  medical  and 
surgical  witnesses. 

In  homicide  or  in  the  contests  over  the  validity  of  wills,  insanity 
and  imbecility  play  an  important  part.  There  is  scarcely  a  case 
of  homicide,  where  the  evidences  of  guilt  is  overwhelming,  that 
the  defense  made  for  the  prisoner  is  not  that  of  insanity.  If  a 
man  happens  to  die,  possessed  of  religion  enough  to  make  a  fair, 
charitable  distribution  of  the  surplus  of  his  property,  for  the  pur- 
pose of  alleviating  some  of  the  hard  paths  and  fortunes  of  life, 
or  for  affording  greater  facilities  for  the  education  of  the  indigent 
or  friendless;  then  most  assuredly  he  is  imbecile  or  insane. 

Thus  this  special  and  magnificent,  yet  dark  and  most  difficult  of 


300  MEDICAL   EVIDENCE. 

all  studies,  insanity;  in  some  of  its  various  forms,  is  constantly 
before  the  courts,  and  the  opinions  of  medical  men  constantly 
needed  and  depended  upon  for  its  solution.  To  guide  the  court 
safely  at  this  point,  the  witness  must  not  only  understand  the 
basis  or  the  machinery  of  mind, — anatomy  and  physiology, — 
but  he  must  be  well  versed  in  the  ethereal  world  of  metaphysics 
or  psychology  in  its  widest  sense. 

It  is  a  constant  source  of  complaint,  on  the  part  of  writers  on 
Medical  Jurisprudence,  and  indeed,  of  elementary  law  writers  of 
high  standing,  and  also  of  the  medical  witness  himself,  that 
medical  testimony  is  not  appreciated  or  treated  by  the  legal  pro- 
fession with  the  consideration  its  character  and  value  warrant. 
There  is  too  much  ground  for  these  complaints,  especially  in  the 
case  of  the  medical  witness.  He  does  not  always  receive,  at  the 
hands  of  the  members  of  the  bar,  that  courtesy  and  candor  to 
which  he  is  entitled.  Yet  it  is  not  to  be  denied,  that  the 
'"  doctors  "  who  often  intrude  themselves  upon  the  court  and  bar, 
as  the  representatives  of  the  medical  profession,  do,  by  their 
ignorance,  self-conceit,  and  disgusting  assurance  and  complacency, 
present  so  perfect  an  embodiment  of  egotism  and  imbecility,  that 
•every  man  of  common  sense  is  at  once  disgusted  with  the  exhi- 
bition of  groundless  pretension;  and  the  worthy  members  of  a 
noble  profession  have  to  bear  unjustly,  the  odium  and  reproach 
thus  wrongfully  incurred  and  heaped  upon  it,  through  the  impu- 
•dence,  imposition  and  ignorance,  of  knaves  and  fools. 

The  court  and  bar  should  remember,  that  a  profession  or 
science  that  can  live,  flourish  and  bless  mankind,  notwithstanding 
the  loathful  and  deadly  influence  of  charlatans, — a  fungous  growth 
upon  the  body  of  the  profession,  like  a  cancer  upon  the  breast 
of  womanhood,  constantly  eating  out  its  life  and  presenting  a 
tormenting  and  disgusting  ulcer, — must  have  great  vitality  and 
tenacity  of  life,  worthy  of  their  respect  and  admiration. 

What  other  profession  than  the  medical,  could  have  carried  for 
so  long  a  time  such  "  a  body  of  death,"  and  still  survive,  ap- 
parently more  strong  and  vigorous  than  ever  from  century  to 


THE    IMPORTANCE   OF    MEDICAL   EVIDENCE.  301 

century  ?  No  sooner  do  the  recuperative  powers  of  the  pro- 
fession throw  off,  by  the  process  of  sloughing,  one  fungous  growth, 
than  another  springs  up,  to  be  in  turn  thrown  off;  yet  the  science 
of  medicine  lives  on.  Its  history  commenced  and  runs  parallel 
with  the  human  race ;  and  we  may  hope  that  the  day  is  not 
far  distant  when  the  profession  of  medicine  will  be  completely 
disenthralled  and  rejuvenated  from  the  great  difficulties  with 
which  it  has  always  had  to  contend,  and  without  let  or  hinder- 
ance,  pursue  its  glorious  mission  of  lengthening  life,  relieving 
pain,  and  cheering  and  blessing  mankind.  These  peculiar  diffi- 
culties and  troubles,  connected  with  the  medical  profession,  attor- 
neys should  bear  in  mind  when  they  would  censure  that  profession. 

But  to  take  the  case  as  we  find  it,  the  only  chance  for  the 
medical  witness  in  court,  is  to  present  clearly,  true  science,  and  as 
far  as  possible  the  reasons  for  the  opinions  given ;  and  his  testi- 
mony will  be  understood  to  mean  something,  and  he  will,  at 
least,  be  respected  by  the  court  and  bar. 

Strength  of  character,  candor,  intelligence,  manly  diffidence 
on  questions  that  science  can  not  yet  fathom,  characterize  the 
true  medical  man,  who,  by  hard  labor  and  severe  study,  has 
comprehended  his  science  so  far  as  possible.  It  gives  to  him  a 
proper  confidence  and  self-reliance;  enabling  the  court  and 
attorneys  to  distinguish  the  true  representative  of  science,  from 
the  impostor,  who  will  be  glad  to  retreat  to  an  oblivion  that  can 
alone  shield  him  from  the  consequences  of  his  guilt  and  presump- 
tion. Indeed,  this  is  true  to-day ;  the  true  medical  man,  when 
he  comes  upon  the  stand,  though  there  may  be  much  prejudice 
against  him  at  the  outset,  will  soon  disarm  that  prejudice,  and 
all  that  he  says  will  be  taken  as  evidence ;  while  the  counterfeit 
will  be  as  surely  nailed  to  the  counter. 

No  man  should  presume  to  come  upon  the  stand  to  enlighten 
a  court  in  a  difficult  case,  unless  he  is  able  to  do  so.  Such  a 
one,  though  called,  and  full  of  confidence,  will  go  off  with  credit 
only,  by  frankly  admitting  that  he  can  not  throw  light  upon  the 
subject.  He  then  has  the  reputation  of  being  an  honest  man, 


302  MEUCAL   EVIDENCE. 

which  he  is  not,  if  he  will  pretend  to  palm  off  his  ignorance  upon 
a  court  and  jury  for  true  science. 

That  witness  who  undertakes  to  elucidate  what  he  can  only 
render  more  obscure,  can  not  and  ought  not  receive  any  favor  at 
the  hands  of  the  court  or  bar.  The  medical  witness  sometimes 
complains  that  he  is  compelled  to  appear  as  a  witness,  and  then 
must  submit  to  abuse,  and  perhaps  ridicule.  This  may  some- 
times happen,  but  it  is  seldom  that  the  deliberate,  candid  and 
intelligent  witness  will  be  thus  used, — certainly  not  by  a  court. 
No  witness  is  ever  compelled  to  appear  and  testify  to  what  he 
don  *t  know.  He  may  be  compelled  to  attend  at  court  in  obe- 
dience to  a  subpoena ;  but  if  he  testifies,  or  attempts  to,  upon  a 
subject  requiring  opinions,  upon  which  he  has  no  well-settled  and 
well-defined  ideas,  fixed  and  definite,  it  is  his  own  fault,  for  which 
he  alone  is  to  blame ;  for  no  one  but  himself  can  know  so  well 
^s  he, — until  he  has  exposed  himself, — how  unfit  he  is  for  the 
occasion. 

It  is  a  very  great  mistake  under  which  some  medical  witnesses 
labor,  that  because  of  the  simple  fact  that  they  are  called  "  doc- 
tors," they  can  appear  upon  the  witness  stand  and  decide  those 
momentous  questions  to  which  we  have  referred.  It  will  not 
be  tolerated.  However  anxious  an  incompetent  witness  may  be, 
to  appear  learned,  and  however  hard  he  may  labor  to  show  it,  he 
will  ever  find  it  uphill  business  to  make  the  court  and  counsel 
believe  that  he  is  really  so.  To  appear  really  learned,  he  must 
be  able  to  make  the  subject  upon  which  he  gives  an  opinion, 
clear,  and  to  give  satisfactory  reasons  for  his  opinion.  He  must 
be  not  only  a  thinker  himself,  but  must  satisfy  others  that  he  is 
master  of  the  subject.  Take  almost  any  one  of  the  important 
scientific  questions  upon  which  the  professional  witness  is  called 
to  pass  an  opinion,  and  unless  he  has  looked  at  the  subject  before, 
with  a  purpose  to  understand  it, — comprehending  its  extent, 
weight  and  relations, — he  will  find  it  to  have  suddenly  assumed 
n.n  importance  he  has  not  before  suspected,  just  at  a  time  when 
the  discovery  will  add  to  his  confusion  and  chagrin.  It  is  better 


THE    IMPORTANCE   OF   MEDICAL   EVIDENCE.  303 

to  make  this  discovery  in  the  quiet  stillness  and  security  of  soli- 
tary thought  and  study,  than  under  the  eye  of  a  judge  and  the 
severe  scrutiny  of  counsel. 

A  man,  whether  learned  or  not,  whether  in  court  or  out  of 
court,  will  talk  clearly  upon  a  subject  he  well  understands, 
whether  it  is  scientific  or  otherwise ;  but  unless  it  is  clear  in  his 
own  mind,  his  account  of  it  will  be  confused  and  unsatisfactory. 
No  amount  of  windy  pretension  or  technical  verbosity,  will  help 
him  out  of  the  ridiculous  position  into  which  he  has  voluntarily 
and  impudently  placed  himself,  by  pretending  to  do  what  he  is 
wholly  incompetent  to  accomplish.  It  is  this  profusion  of  dis- 
agreeable assurance,  empty  pretension,  gassy  reputation,  wise 
looks  and  big  words,  that  so  often  disgust  the  court  and  counsel, 
and  bring  disgrace  upon  those  who  are  really  high-minded,  learned 
and  candid. 

William  Hunter  says :  "  To  make  a  show,  and  appear  learned 
and  ingenious  in  natural  knowledge,  may  flatter  vanity ;  to  know 
facts,  to  separate  them  from  supposition,  to  arrange  and  connect 
them,  to  make  them  plain  to  ordinary  capacities,  and  above  all, 
to  point  out  the  useful  applications,  is,  in  my  opinion,  much  more 
laudable,  and  shall  be  the  object  of  my  ambition." 

When  the  matter  at  issue  is  of  sufficient  importance  to  com- 
mand able  counsel  in  conducting  it,  all  false  pretension  on  the 
part  of  the  witness  will  be  at  once  detected  and  exposed,  whether 
professional  or  unprofessional. 


NOTE. — Take  for  example  the  question  of  insanity.  When  the  defence  of 
insanity  is  set  up,  in  a  charge  of  murder,  in  order  to  warrant  the  jury  in  acquit- 
ting a  prisoner,  it  must  be  proved  affirmatively  that  he  was  iusane,  in  a  certain 
legal  sense,  at  the  time  of  perpetrating  tJie  act.  *  *  *  It  is  necessary  to  impress 
upon  the  mind  of  the  medical  witness,  that  it  is  not  medical,  but  lejal  insanity 
which  has  to  be  proved  on  these  occasions  to  the  satisfaction  of  a  jury.  As  no 
two  medical  men  agree  about  what  is  madness  in  a  medical  sense,  and  as  some 
"  mad  doctors  "  have  even  held  that  all  gnat  crimii  als  are  necssarily  insane,  it  is 
obvious  that  the  power  to  absolve  from  responsibility  could  not  be  placed  in  the 
hands  of  the  profession,  with  a  due  regard  to  the  protection  of  society,  or  a  safe 
administration  of  the  law.  Taylor's  Medical  Jurisprudent  (6  Am.  Ed.,  p.  981. 


CHAPTER  XXI. 

DUTIES  AND  RESPONSIBILITIES  OF  MEDICAL  WITNESSES 

Tins  whole  subject  of  Medical  Evidence  has  been  too  much 
neglected  by  the  medical  profession  at  large.  The  witness  stand 
should  be  the  arena  upon  which  the  scientific  man  should  gladly 
appear,  as  the  public  vindicator  of  justice;  thereby  defending 
and  vindicating  his  own  noble  profession  from  the  discredit 
'brought  upon  it  by  the  illiterate  hangers-on,  who  claim  to  repre- 
sent it,  but  do  not  any  more  truly,  than  does  the  miserable  petti- 
fogger truly  represent  the  high-minded,  intelligent  and  honorable 
lawyer. 

He  who  studies  well  the  office  of  the  professional  witness, — com- 
bining, as  it  does,  the  importance  of  the  evidence,  and  the  value 
of  the  position  to  the  witness  himself, — will  be  impressed  with  the 
magnitude  of  the  consequences  involved,  and  qualifications  neces- 
sary for  an  easy  and  honorable,  as  well  as  pleasant  discharge  of 
its  functions. 

The  works  on  Medical  Jurisprudence  must  be  read,  studied 
and  analyzed ;  a  great  deal  will  be  found  practically  useless,  but 
what  is  of  real  value  must  be  treasured  up  under  the  light  of  a 
good  judgment. 

Nor  in  them  does  the  medical  witness  find  those  directions  he 
needs  to  prepare  him  for  the  vastly  important  duties  of  making 
up  and  giving  opinions,  that  are  to  be  received  by  a  court  and 
jury  as  facts,  and  that  will  warrant  them  in  rendering  a  ^e  'diet 
or  judgment  upon  such  opinions. 

(304) 


DUTIES   AND    RESPONSIBILITIES    OF    MEDICAL    WITNESSES         305 

Dr.  C.  B.  Coventry,  of  Utica,  New  York,  makes  the  following 
suggestions  to  the  medical  witness,  in  an  able  report  to  the 
American  Medical  Association,  on  the  Medical  Jurisprudence  of 
Insanity :  "If,  however,  he  concludes  to  form  an  opinion  and 
testify,  there  are  certain  rules  and  regulations  which  he  should 
adopt,  not  only  to  give  force  to  his  testimony  but  for  his  own 
protection. 

1.  He  should  listen  attentively  to  the  testimony,  as  to  all  the 
facts  in  the  case,  and  avail  himself  of  every  authentic  means  of 
forming  a  correct  opinion. 

2.  He  should  studiously  guard  against  being  biased, .  either  by 
popular  clamor,  or  because  he  is  called  by  one  side  rather  than 
the  other.     He  is   to  form  his  opinion  exclusively  from  what 
appears  in  evidence,  excluding,  as  far  as  possible,  any  previous 
prejudices,  or  what  he  may  have  seen  in  the  papers,  or  heard 
from  rumor. 

3.  The  medical  witness  is  not  to  take  into  consideration  the 
influence  which  his  testimony  may  have  on  the  prisoner  at  the 
bar,  or  the  case  under  consideration,  if  he  is  testifying  as  to  facts. 
He  states  the  facts  as  he  understands  them.     If  it  is  a  matter  of 
opinion,  drawn  from  the  facts,  he  should  state  it  honestly ;  but, 
if  he  has  doubts,  he  should  express  them. 

4.  The  expert  is  called  to  testify  as  to  the  bearing  of  the  testi- 
mony given,  and  though  he  may  have  his  own  doubts  of  the 
truth  of  the  testimony,  yet,  if  it  stands  unimpeached,  he  must 
receive  it  as  true.     It  is  not  proper  for  him  to  call  in  question 
the  testimony  of  another  witness;  at  the  same  time,  he  is  not 
required  to  say  he  believes  him,  but  can  say  that  the  testimony 
of  the  witness  or  witnesses  prove  so  and  so,  leaving  the  jury  to 
judge  of  its  credibility. 

5.  A  medical  witness  should  not  assume  the  province  of  the 
jury ;  as,  for  instance,  to  say  a  particular  wound  was  the  cause 
of  death ;  he  should  only  state  what  would  be  the  ordinary  effect 
of  such  a  wound ;  or,  in  a  question  of  insanity,  that  the  testi- 
mony given  was  an  evidence,  or  was  not  an  evidence  of  insanity. 

20 


306  MEDICAL   EVIDENCE. 

6.  The  medical  witness  should  have  his  mind  fully  prepared, 
before  taking  the  stand,  as  to  what  he  can  testify  to,  and  his 
reasons,  if  they  are  required.  He  should,  in  his  testimony,  avoid, 
as  much  as  possible,  the  use  of  technical  or  professional  terms, 
which  the  jury  would  not  be  likely  to  understand ;  but  if  unavoid- 
able, then  their  meaning  should  be  explained  to  the  jury.  In 
giving  his  testimony,  he  should  keep  cool  and  collected,  and  not 
permit  himself  to  be  irritated  or  confused  by  the  counsel ;  and 
should  avoid  introducing  any  expression  or  opinion  not  imme- 
diately connected  with  the  cause  before  the  court."1 

Though  the  medical  witness  may  feel  that  he  is  sometimes  too 
roughly  handled  by  counsel,  he  should  remember  that  the  ablest 
and  best  judges  and  lawyers  fully  appreciate  the  difficulties  and 
importance  of  his  position. 

Chief  Justice  Hornblower,  on  one  occasion,  said  :  "  I  consider 
the  administration  of  Criminal  law  greatly  indebted  to  medical 
men  for  the  results  of  their  valuable  experience  and  professional 
discussions  on  the  subject  of  insanity,  and  I  believe  those  judges 
who  carefully  study  the  medical  writers,  and  pay  the  most  respect- 
ful, but  discriminating  attention  to  their  scientific  researches  on 
the  subject,  will  seldom,  if  ever,  submit  a  case  to  a  jury  in  such 
a  way  as  to  hazard  the  conviction  of  deranged  men."2 

Judge  Capron,.  who  so  ably  presided  over  the  celebrated 
Huntington  trial  in  the  city  of  New  York,  said  on  that  occasion : 
"Insanity,  or  mental  alienation,  has,  from  time  immemorial, 
received  the  attention  of  the  civil  and  criminal  tribunals  of  -all 
enlightened  governments ;  able  professors  in  all  the  learned  pro- 
fessions and  other  profound  scholars,  have  studied  and  examined 
the  structures  and  functions  of  the  human  system,  the  laws 
and  operations  of  mind,  the  relations  of  each  to  the  other,  and 
their  mutual  influence  as  a  united  organism,  and  have  deducted 
results,  and  demonstrated  their  correctness  by  practical  illus- 

1  Pamphlet  Report,  p.  51. 

2  The  Spencer  Case,  1  Zab.  271. 


DUTIES   AND    RESPONSIBILITIES   OF   MEDICAL   WITNESSES.        307 

trations,  and  logical  deductions  from  established  data;  these 
results  the  courts  have  never  failed  to  sanction  as  soon  as  their 
learned  authors  had  agreed  among  themselves  on  the  subject,  and 
practical  experience  had  attested  their  certainty."1 

The  medical  witness,  unlike  the  ordinary  witness,  does  not,  as 
a  general  thing,  testify  to  matter-of-fact  that  comes  within  his 
own  knowledge  from  the  exercises  of  his  senses,  but  he  must 
give  the  deductions  or  inferences  that  are  to  be  drawn  from  the 
facts  as  given  by  others, — that  is  to  say,  certain  facts  being 
given,  he  is  to  state  the  general  principle  which  they  indicate 
or  involve,  so  far  as  it  bears  on  the  question  at  issue. 

The  facts  upon  which  the  medical  witness  may  suddenly  be 
called  to  give  an  opinion  may  be  new  to  him ;  they  may  be 
drawn  from  any  part  of  the  wide  domain  peculiar  to  the  scien- 
tific physician  or  surgeon ;  yet  there  may  be  no  time  for  much 
reflection,  or  for  a  reference  to  authority.  The  counsel  who 
manage  the  case,  can  take  all  the  time  necessary  to  familiarize 
themselves  with  all  the  points  of  evidence  in  the  case,  and  it  is 
their  duty  so  to  do ;  but  the  medical  witness,  upon  whose  testi- 
mony the  case  may  turn,  is  brought  upon  the  stand  without  any 
intimation,  perhaps,  as  to  the  case,  or  the  points  upon  which  he  is 
called.  Now,  this  is  quite  different  from  being  suddenly  called 
into  court  to  state  a  fact, — what  one  has  seen  or  heard.  All  the 
common  witness  has  to  do,  is  simply  to  tell  the  truth ;  when  he 
has  done  this,  his  highest  duty  is  accomplished ;  but  the  medical 
witness  must  know  the  facts  first,  constituting  the  case  upon 
which  his  opinion  is  desired ;  then  he  must  apply  to  these  facts 
the  special  knowledge  he  has  of  other  scientific  facts,  established 
perhaps  by  many  difficult  experiments  of  different  experimenters 
in  various  countries,  and  possibly,  in  different  ages.  Upon 
this  chain  of  facts,  one  end,  or  the  whole  of  which  may  lie 
completely  beyond  the  reach  and  sight  of  the  court  and  jury, 
his  reasoning  must  be.  correct,  or  his  opinion  will  be  erroneous. 

1  Trial  of  Huntington,  444. 


308  MEDICAL   EVIDENCE. 

The  court  and  all  parties  concerned  have  a  right  to  know  upon 
just  what  evidence  the  jury  found  their  verdict  whether  they  can 
understand  it  or  not;  that  if  there  is  any  thing  that  influences  the 
verdict  that  is  illegal,  redress  may  be  had  by  a  new  trial  or 
otherwise. 

After  he  has  thus  applied  his  scientific  knowledge  to  the  facts 
as  stated  by  others,  reaching  a  conclusion  in  his  own  mind,  he  is 
then  to  give  the  opinion  to  which  he  comes,  to  the  jury  or  court. 
His  duty,  therefore,  involves  all  that  constitutes  true  logic  and 
correct  reasoning ;  while  an  ordinary  memory  wiil  enable  the 
common  witness  to  state  what  he  has  seen. 

The  medical  witness  then,  can  only  be  prepared  to  do  credit  to 
himselfj  justice  to  the  parties  interested  in  the  issue  of  the  case 
upon  which  he  is  called,  and  honor  to  the  profession  he  repre- 
sents, by  a  thorough,  well-ordered,  well-digested  knowledge  and 
complete  understanding  of  his  profession,  in  all  its  extensive  and 
intricate  departments; — upon  questions  in  any  of  which  he  may  be 
called  to  give  an  opinion.  In  short,  all  the  careful  study,  close 
observation,  correct  reasoning,  clearness  of  understanding,  pre- 
cision of  thought,  necessary  to  carry  the  medical  man  safely 
through  a  life  of  active  practice,  without  rendering  himself  liable 
to  a  charge  of  Malpractice  or  incompetency,  is  essential  to  consti- 
tute him  a  good,  reliable  expert. 

The  medical  witness  should  never  permit  himself  to  be  cun- 
ningly drawn  into  a  discussion  while  upon  the  stand,  either 
metaphysical  or  scientific ;  because  it  will  be  always  carried  on 
to  disadvantage  on  his  part.  It  is  a  discussion  the  court  and 
jury  can  feel  but  little  interest  in,  and  the  chances  are  that  it 
will  result  to  the  discredit  and  discomfiture  of  the  witness.  The 
counsel  being  perfectly  at  home  in  the  presence  of  the  court,  and 
the  witness  .being  placed  in  a  new,  and  to  him,  perhaps,  an  em- 
barrassing and  awkward  position,  the  former  will,  of  course,  have 
every  advantage.  The  witness  has  done -his  duty  when  he  has 
answered  the  question  put  to  him,  in  as  few  words  as  will  convey 
the  sense  he  wishes  to  utter,  with  the  proper  explanation,  if  any 


DUTIES   AND    RESPONSIBILITIES    OF   MEDICAL   WITNESSES.        309 

is  needed.  When  he  volunteers  any  thing  beyond  this,  not 
directly  bearing  upon  the  question  at  issue,  he  does  it  at  his 
peril,  and  prejudices  his  position.  While  the  witness  has  an 
undoubted  right  to  clothe  his  ideas  in  his  own  language,  and  ex- 
plain fully  just  what  he  means,  let  him  study  brevity,  for  he  has 
no  right  to  go  out  of  his  way,  even  to  argue  or  defend  his  position, 
unless  called  upon  so  to  do.  After  he  has  given  an  opinion  and 
the  grounds  for  it,  whether  right  or  wrong,  it  should  be  left  there. 

The  witness  is  entitled  to  the  right, — and  should  insist  upon  it, — 
of  having  the  question  fairly  and  clearly  stated.  And  he  should 
not  attempt  an  answer  until  he  fully  comprehends  its  bearing. 

The  author  once  examined  Profs.  Frank.  H.  Hamilton  and 
Austin  Flint,  as  medical  witnesses;  and  this  peculiar  character- 
istic in  their  mode  of  discharging  their  duty  as  witnesses  struck 
him  forcibly.  Very  learned  and  deliberate  men  as  they  are,  they 
would  answer  no  question  until  it  was  so  shaped  as  to  mean 
something,  and  until  fully  comprehended  by  them.  So  it  should 
be  with  any  witness,  who  is  an  expert,  desirous  to  enlighten  the 
•case,  and  wishing  to  preserve  his  own  reputation,  and  that  of  his 
profession.  He  should  be  careful  as  to  categorical  answers  to 
questions,  unless  he  completely  comprehends  the  effect  of  such 
direct  answers,  and  the  extent  to  which  they  reach.  Yes,  or  no, 
positively  fixes  the  answer,  and  afterward,  it  may  be  found  diffi- 
cult to  qualify  such  answers.  A  witness  may  say  yes,  or  no,  to 
facts  within  his  knowledge,  but  when  the  question  involves 
several  elements  and  various  circumstances,  as  most  professional 
questions  do,  those  positive  terms  should  be  used  cautiously  and 
guardedly. 

Hypothetical  cases  are  sometimes  troublesome  to  the  witness, 
unless  he  is  on  his  guard.  A  case  may  be  supposed  very  nearly 
like  the  one  upon  which  the  evidence  is  to  bear,  and  .yet,  lacking 
an  essential  element  of  the  case  at  bar,  but  so  nicely  adjusted  and 
balanced,  that  the  jury  may  not  see  the  difference.  It  is  neces- 
sary, in  many  cases,  for  the  counsel  to  hypothecate  a  case  for  the 
witness  to  give  an  opinion  upon,  which,  if  the  witness  perfectly 


310  MEDICAL    EVIDENCE. 

understands,  he  can  properly  answer ;  but  there  should  be  no 
confusion  or  contradiction  in  the  terms  or  language  used,  and  the 
answer  can  not  be  too  closely  confined  to  the  supposed  case. 

The  rule  formerly  was,  in  the  language  of  the  court, — C.  J. 
SHAW  presiding, — in  the  Roger's  case ;  to  put  the  question  to  the 
professional  witness  in  this  shape  r1  "  If  the  symptoms  and  indi- 
cations testified  to  by  other  witnesses  are  proved,  and  if  Ihe  jury 
are  satisfied  of  the  truth  of  them,  whether  in  his  opinion  the 
party  was  insane,  and  what  the  nature  and  character  of  that 
insanity ;  what  state  did  they  indicate,  and  what  he  would  expect 
would  be  the  conduct  of  such  a  person  in  any  supposed  circum- 
stance." He  is  not,  the  court  adds,  to  judge  of  the  credit  of  the 
witnesses  or  of  the  truth  of  the  facts  thus  testified  to  by  others- 
It  is  for  the  jury  to  decide  whether  such  facts  are  satisfactorily 
proved. 

Under  this  state  and  form  of  the  question,  the  medical  witness 
passed  upon  the  condition  of  the  person  being  tried,  in  case  the 
facts  testified  to  by  other  witness  were  believed  by  the  jury.  In 
this  case  he  must  hear  all  the  evidence  that  the  jury  hears;  he 
must  connect  it ;  he  must  reject  what  does  not  bear  upon  the 
case;  in  fact,  he  discharges  all  the  functions  of  a  jury,  except  as 
to  the  credibility  of  the  witnesses. 

A  different  rule  as  to  the  form  of  the  questions  put  to  a  pro- 
fessional witness, — especially  in  a  case  of  insanity, —  has  been 
adopted  since  the  trial  of  Rogers.  In  the  case  of  the  U.  S.  y. 
McGlue,  1  Curtis,  Mr.  Justice  CURTIS  said,  that  medical  experts 
"  were  not  allowed  to  give  opinions  in  the  case.  It  is  not  the 
province  of  the  expert  to  draw  inferences  of  fact  from  the  evi- 
dence, but  simply  to  declare  his  opinion  on  a  known  or  hypo- 
thetical state  of  facts;  and,  therefore,  the  counsel  on  each  side 
have  put  to  the  physicians  such  states  of  fact  as  they  deem 
warranted  by  the  evidence,  and  have  taken  their  opinions  thereon. 
If  you  consider  any  of  these  states  of  facts  put  to  the  medical 

Commonwealth  v.  Kodgers,  7  Metcalf,  505. 


DUTIES    AND    RESPONSIBILITIES    OF   MEDICAL    WITNESSES.        311 

witness  are  proved,  then  the  opinions  thereon  are  admissible  evi- 
dence to  be  weighed  by  you,  otherwise  their  opinions  are  not 
applicable  to  this  ca.se."  This  is  also  the  view  taken  by  the  twelve 
judges  in  the  McNaghton  case.1 

Although  the  old  form  of  the  question  may  possibly  be  still 
allowed  in  some  of  the  States,  the  rule  as  laid  down  by  Judge 
Curtis  is  the  most  correct  and  reasonable  one.  Here  the  witness 
does  not  pass  upon  any  question  belonging  to  the  jury ;  but  he 
determines  whether  or  not  a  compact  statement  of  supposed  facts 
indicate  a  certain  thing  or  condition,  which  deduction  the  jury 
are  unable  to  make,  though  all  the  facts  upon  which  the  medi- 
cal witness  bases  his-  opinion  are  before  them.  In  this  case 
the  expert  has  not  the  responsibility  of  determining  facts  from 
the  evidence, — the  facts  upon  which  he  is  giving  an  opinion  are 
supposed  to  be  true.  If  true,  he  says  what  they  prove  scien- 
tifically.2 

All  this,  however,  requires  the  cool  exercise  of  judgment,  the 
clear  comprehension  of  science,  and  the  lucid  presentation  of  it 
to  the  court  and  jury.  And,  let  the  question  be  put  in  either 
way,  on  some  difficult  questions  like  that  of  insanity,  this  position 
and  duty  of  the  medical  witness  is  an  embarrassing  and  weighty 
one  in  the  extreme.  The  symptoms  that  indicate  insanity,  often 
indicate  other  forms  of  disease  when  taken  singly,  and  unless 
presented  by  the  evidence,  or  in  the  hypothetical  case  collec- 
tively,— which  is  rarely  the  case, — the  matter  is  left  so  obscure 
that  the  expert  is  necessarily  puzzled  as  to  the  weight  and  place 
he  shall  give  to  the  symptoms  as  presented.  The  witness  can 
not  safely  answer  the  question  affirmatively,  because  some  of  the 
symptoms  indicate  other  diseases;  and  he  can  not  possibly 
answer  in  the  negative,  because  some  of  the  symptoms  only,  or 
all,  may  indicate  insanity,  as  well  as  other  diseases.  When  dis- 


10  Clarke  &  Fin.  210. 

An  able  article  against  the  new  rule  will  be  found  in  the  July  No.,  1859,  of 

Boston  Monthly  Law  Reporter,  127. 


312  MEDICAL   EVIDENCE. 

crepancies  and  contradictions  exist  in  the  evidence,  or  on  the 
supposed  case,  as  will  often  occur,  the  medical  witness  must 
be  necessarily  embarrassed,when  asked  to  give  an  opinion  upon 
such  a  basis.  If  the  evidence  conflicts,  it  can  not,  of  course,  all 
be  true.  If  the  question  involves  an  impossibility,  the  proper 
course  is  to  decline  answering  altogether,  and  ask  that  a  definite 
hypothetical  case  be  put. 

No  judicious  judge  will  require  any  thing  more  than  a  fair  and 
common-sense  effort  on  the  part  of  the  medical  witness ;  and 
it  is  to  the  court  and  not  to  counsel,  that  the  witness  is  to  look 
for  guidance  and  protection  in  his  effort  to  do  his  duty.  If  cool 
and  collected,  having  the  necessary  judgment  and  qualification, 
the  witness  need  entertain  no  fear  of  the  court  room.  The 
counsel  who  improperly  invades  the  domain  of  the  witness,  either 
to  embarrass  or  abuse  him,  will  receive  no  sympathy  from  a  court 
or  jury,  if  the  witness  maintains  a  dignified  manhood ;  but,  on 
the  other  hand,  such  counsel  will  most  certainly  prejudice  his 
client's  cause,  and  impair  his  influence  with  the  jury  ;md  court. 

There  are  several  questions,  in  particular,  that  have  produced 
great  trouble  in  their  solution  to  the  medical  witness, — questions 
very  difficult  in  themselves,  but  rendered  much  more  so  by  the 
skillful  use  made  of  them  by  shrewd  counsel,  for  the  purpose  of 
overturning  the  effect  of  the  medical  witness'  testimony. 

Where  is  the  inexperienced  witness,  who  can  look  at  the  follow- 
ing question  for  the  first  time,  in  the  presence  of  a  court,  jury 
and  counsel,  without  confusion  and  dismay  ?  "  What  is  a  wound  ?" 
or  this,  "  What  is  meant  by  a  wound  dangerous  to  life  ?"  or  this, 
"What  is  meant  by  grievous  bodily  harm?" 

These  questions,  and  some  others  of  the  same  character,  as 
"  What  is  insanity ;"  or,  "  What  is  a  poison  ?"  and  the  like,  have 
driven  many  medical  witnesses  from  the  stand,  broken  down  and 
disgraced,  because  they  have  foolishly  attempted  to  do  what  is 
impossible.  And  yet  it  should  not  be  so,  and  would  not,  if  the 
medical  witness  understood  the  true  nature  and  bearing  of  these 
questions,  and  their  great  difficulty  of  solution. 


DUTIES   AND    RESPONSIBILITIES    OF   MEDICAL    WITNESSES.        313 

The  witness  will  find  it  worse  than  in  vain  to  attempt  to  give 
a  consistent  and  authoritative  definition  of  these  terms.  The 
books  of  medicine,  surgery  and  law  do  not  afford  a  positive  defi- 
nition to  be  relied  upon. 

Dunglison,  in  his  Medical  Dictionary,  does  not  attempt  a  defi- 
nition of  the  term  "wound."  Medical  writers  have,  however, 
attempted  a  definition  of  a  wound :  one  says,  a  wound  is  ua 
solution  of  continuity,  from  violence  of  any  naturally  continuous 
parts:"  another  has  said,  the  true  definition  should  be,  "an  exter- 
nal breach  of  continuity,  directly  occasioned  by  violence;"  and 
again,  the  term  has  been  defined  "an  injury  to  an  organic  tex- 
ture, by  mechanical  or  other  violence." 

It  is  claimed  by  some,  that  to  constitute  a  wound,  the  skin 
should  always  be  broken  or  injured,  yet  not  regarding  burns 
produced  by  heated  metals  or  corrosive  liquids,  as  .wounds. 
Distinctions  like  these  only  tend  to  the  embarrassment  of  the 
witness  if  he  attempts  to  follow  them,  without  facilitating  the 
attainment  of  truth,  or  the  advancement  of  criminal  justice. 
Bouvier  says :  "  This  term,  wound,  in  legal  medicine,  comprehends 
all  lesions  of  the  body,  and  in  this  differs  from  the  meaning  of 
the  word  when  used  in  surgery.  The  latter  only  refers  to  a 
solution  of  continuity,  while  the  former  comprises  not  only  these, 
but  also  every  kind  of  accident,  such  as  bruises,  contusions, 
fractures,  dislocations  and  the  like."1 

The  present  rule  of  law  applicable  to  the  term  "wound"  is, 
that  no  injury  constitute*  a  wound  in  law,  unless  the  continuity 
of  the  skin  be  broken.  Upon  an  indictment  for  wounding,  under 
the  act  of  9  Geo.  4,  c.  31,  sec.  12,  it  appeared  that  the  prisoner 
had  struck  the  prosecutor  with  an  iron  bar,  and  an  iron  hammer, 
and  that  the  collar  bone  had  been  broken,  and  the  end  of  the 
bone  much  injured  by  violence,  and  upon  a  case  reviewed,  all  the 
judges  except  Bayley,  B.,  and  Park,  J.  A.  J.,  thought  that  there 


2  Bouvier,  Law  Dictionary,  662. 


314  MEDICAL   EVIDENCE. 

was  no  wounding  within  the  statute.1  Lord  LYNDHURST  said,  on 
one  occasion,  that  "the  definition  of  a  wound,  in  criminal  cases, 
is  an  injury  to  the  person,  by  which  the  skin  is  broken.  If  the 
skin  is  broken  and  there  is  a  bleeding,  then  it  is  a  wound."2 

It  is  not  enough  that  the  cuticle  be  divided,  or  that  there  is 
only  a  scratch ;  in  such  cases  there  is  no  wound  in  law,  even 
though  death  results  therefrom.  A  case  is  reported  where  it 
appeared  that  the  prisoner  attacked  the  prosecutor  with  a  butch- 
er's knife,  and  drawing  him  backward,  attempted  to  cut  his 
throat,  an  injury, — which  the  prosecutor  described  as  a  slight 
scratch, — was  inflicted  on  the  throat.  PARK,  B.,  said  :  "  Nothing 
which  can  properly  be  called  a  wound  has  been  inflicted  in  this 
case.  A  scratch  is  not  a  wound  within  the  statute ;  there  must,, 
at  least,  be  a  division  of  the  external  surface  of  the  body."3 

Upon  an  indictment  for  wounding,  a  medical  man  said,  that 
there  was  a  slight  abrasion  of  the  skin,  not  exactly  a  wound,  but 
an  abrasion  of  the  cuticle  or  upper  skin,  it  did  not  penetrate  fur- 
ther than  that;  blood  would  issue,  but  in  different  manner  if 
the  whole  skin  was  cut.  COLERIDGE,  J.,  told  the  jury :  "  It  is 
essential  for  you  to  be  quite  clear  that  a  wound  was  inflicted.  I 
am  inclined  to  understand,  and  my  learned  brothers  are  of  the 
same  opinion,  that  if  it  is  necessary  to  constitute  a  wound  that 
the  skin  should  be  broken,  it  must  be  the  whole  skin;  and 
it  is  not  sufficient  to  show  a  separation  of  the  cuticle  only ;  you 
will,  therefore,  have  to  say  on  the  first  three  counts,  whether  there 
was  a  wounding  in  the  sense  in  which  I  have  stated,  viz :  was 
there  a  wound, — a  separation  of  the  whole  skin  ?"4  If  the  skin 
is  broken  internally,  it  will  constitute  a  wound  in  law.  A  surgeon 
stated,  upon  an  indictment  for  wounding :  "  That  the  lower  jaw 
on  the  left  side  was  broken  in  two  places ;  the  skin  was  broken 


1  Rex  t,.  Wood,  1  R.  &  M.  C.  C.  R.  278 ;— 4  C.  &  P.  381 ;  1  Russ.  on  Crimes, 
/29. 

7  Jiority  v.  Brooks,  6  C.  &  P.  684. 
3  Kex  v.  Beckett,  1  Moo.  &  R.  526. 
1  Reg.  v.  McLoughlin,  8  C.  &  P.  635. 


DUTIES   AND   RESPONSIBILITIES    OF   MEDICAL   WITNESSES.        315- 

internally,  but  not  externally ;  there  was  not  a  great  deal  of  blood; 
one  fracture  was  near  the  chin  and  the  other  near  the  ear."  The 
prosecutor  had  been  struck  by  the  prisoner  with  a  hammer  on  the 
left  side  of  the  face,  but  there  was  no  wound  on  the  outside  of 
the  face.  It  was  objected  that  this  was  not  wounding.  PARK, 
J.  A.  J.,  said :  "  When  I  first  re:id  the  deposition,  I  thought  there 
might  be  some  doubt.  In  consequence,  I  have  consulted  with 
my  Lord  Chief-Justice,  and  considered  the  question  very  much 
in  my  own  mind,  and  we  are  of  the  opinion  that  it  is  a  wounding 
within  the  meaning  of  the  act."  Lord  DENMAN,  in  the  same  case,, 
said :  "  If  it  is  the  immediate  effect  of  the  injury,  we  think  we 
can  not  distinguish  this  from  the  cases  which  have  been  decided." 
In  summing  up,  PARK  said :  "  A  question  was  very  properly  put 
to  us,  as  to  whether  we  thought  there  was  a  wound  within  the 
me  aring  of  the  statute.  We  are  of  the  opinion  that  there  was  a 
wound ;  and  upon  consideration,  I  am  more  strongly  of  that 
opinion  than  I  was  at  the  outset.  There  must  be  a  wounding ; 
but  if  there  be  a  wound, — that  is,  if  the  skin  is  broken,  whether 
there  is  effusion  of  blood  or  not, — it  is  within  the  statute,  whether 
the  wound  is  external  or  internal."1 

Where  a  prisoner  had  bit  off  the  end  of  a  finger,  it  was  held 
on  a  case  reserved,  that  it  was  no  wounding.  So,  when  the  nose 
has  been  bitten  off,  it  has  been  held  to  be  no  wounding.  So, 
when  the  prisoner  had  thrown  a  quantity  of  concentrated  sul- 
phuric acid  into  the  face  of  the  prosecutor,  because  there  was  no 
instrument  used,  that  there  was  no  wounding,  and  it  was  held  the 
conviction  was  wrong.2 

Any  kind  of  instrument  is  sufficient,  but  there  must  be  some 
instrument  used,  to  make  it  a  legal  wounding.  A  stone  bottle, 
a  hedge  stake,  a  gun,  and  even  a  shoe,  if  off,  or  on  the  foot.  A 
kick  from  a  bare  foot  would  not  be  a  wounding.  It  has  not  been 


i  Reg.  v.  Smith,  8  C.  &  P.  173  ;  Lord  Denman,  C.  J. 

*  Rex  v.  Stevens,  R.  &  M.  C.  C.  R.  409 ;  Rex  v.  Harris,  7  C.  &  P.  456;  Rer 
v.  Marron,  R.  &  M.  C.  R.  456. 


316  MEDICAL   EVIDENCE 

settled  whether  the  teeth  of  a  dog,  which  had  been  set  to  bite  a 
person,  can  be  considered  as  instruments  within  these  statutes. 
In  Elnasly's  case,  2  Lew..  124,  Alderson  thought  that  the  bite 
of  a  dog  would  be  within  the  statute,  but  did  not  decide  the 
question.  In  the  Hugh  case,  Park  decided  that  wounds  inflicted 
by  the  teeth  of  dogs  were  not  within  the  statute.  It  would 
seem,  too,  that  the  skin  must  bo  broken  at  the  time,  and  that 
when  sloughing  takes  place,  thus  destroying  a  large  surface 
afterward,  it  is  not  within  the  statute. 

In  a  case  decided  in  the  Queen's  Bench,  in  1847,  in  which  the 
declaration  "alleged  that  the  plaintiff  had  employed  the  defendant, 
who  was  a  surgeon,  for  the  treatment  and  cure  of  certain  wounds, 
fractures,  bruises,  complaints,  and  disorders ;  but  the  evidence 
showed  that  the  defendant  had  been  employed  to  cure  the  plain- 
tiff of  a  dislocated  arm.  At  the  close  of  the  plaintiff's  case,  it 
was  submitted  to  the  learned  Chief  Baron,  that  there  was  no 
word  in  the  declaration  which  was  applicable  to  the  case ;  but 
thirt  objection  was  overruled.  A  dislocation,  it  was  argued,  was 
neither  a  wound,  bruise,  nor  fracture ;  and  the  words  "  complaint 
and  disorder"  were  not  at  all  applicable  to  surgical  cases,  but  to 
internal  complaints,  which  required  to  be  treated  medicinally. 
Lord  DENMAN,  in  delivering  the  opinion  of  the  court,  said :  "  It 
is  rather  strange  that  the  pleader  should  have  omitted  the  most 
appropriate  word,  but  we  think  the  Chief  Baron  was  quite  right." 
In  this  case  the  court  does  not  say  a  dislocation  is  a  wound, — 
they  m;iy  have  placed  it  under  some  of  the  other  terms.  In  the 
United  States  the  same  rule  of  law  prevails  as  in  England,  and  a 
"wound  is  defined  in  the  s:ime  manner.  In  France  a  different 
•definition  obtains.  All  injuries  are  covered  by  the  terms  wound 
blows,  or  violence  to  the  body,  and  either  includes  all  injuries  to 
•which  the  body  is  exposed. 

Another  question  of  much  difficulty  which  the  medical  witness 
is  to  meet,  is  in  regard  to  wounds  or  injuries  " dangerous  to  life" 

As  a  general  thing,  no  wound  is  considered  dangerous  to  life, 
If  it  is  not  immediately  dangerous.     A  wound  to  a  great  blood- 


DUTIES   AND   RESPONSIBILITIES   OF   MEDICAL    WITNESSES.        317 

vessel,  or  to  the  brain,  or  to  any  important  viscera,  is  a  wounding 
dangerous  to  life. 

In  a  certain  sense  any  wound,  however  small,  may  be  con- 
sidered dangerous  to  life ;  but  in  law,  a  wound  is  dangerous  to 
life,  when  in  an  ordinary  case  the  chances  are  that  death  will 
result  from  the  actual  effects  of  the  wound.  Yet  it  is  a  very 
troublesome  question  for  the  medical  witness,  and  he  should  state 
the  difficulties  attending  an  answer  to  the  question.  This  ques- 
tion, like  some  others,  therefore,  is  one  upon  which  medical  wit- 
nesses must  almost  necessarily  differ,  from  its  peculiar  and  com- 
prehensive character.  There  being  so  many  contingencies  upon 
which  the  danger  depends,  one  physician  may  take  in  more  of 
these  circumstances,  or  give  to  them  more  importance,  than 
another.  If  the  witness  says  the  wound  is  not  dangerous  to  life, 
then,  in  all  probability,  he  will  be  asked  if  the  wound  was  capable 
of  producing  "grievous  bodily  harm"  These  terms  are  so 
uncertain  and  vague  in  their  meaning,  it  is  almost  a  matter  of 
impossibility  to  say  what  degree  of  importance  should  be  attached 
to  them, — what  might  be  a  "grievous  harm  "  in  one  case,  might 
not  be  in  another. 

The  safest  course  for  the  witness  in  regard  to  all  these  questions 
is,  to  give  a  true  and  plain  account  of  the  wound, — describing  it 
minutely,  and  the  probable  consequences  that  may  attend  it. 

The  attending  surgeon  is  likely  to  hear  the  dying  statements 
of  the  person,  when  the  wound  is  fatal,  which  statement  may  be 
very  important  evidence,  and  come  to  the  court  through  him,  as 
a  common  witness.  A  few  things,  therefore,  in  relation  to  dying 
declarations  should  be  well  understood  by  the  medical  witness. 

Lord  Chief  Baron  Eyre  states  the  general  principle  upon  which 
dying  declarations  are  admitted  in  evidence  to  be  this:  that  they 
are  declarations  made  in  extremity,  when  the  party  is  at  the  point 
of  death,  and  when  every  hope  of  this  world  is  gone ;  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is  induced,  by  the 
most  powerful  consideration,  to  speak  the  truth.  A  situation  sa 
solemn  and  so  awful,  is  considered  by  the  law  as  creating  an 


318  MEDICAL   EVIDENCE. 

obligation  equal  to  that  which  is  imposed  by  a  positive  oath  in  a 
court  of  justice.1 

The  dying  declarations  of  a  person  made  in  extremis,  are  con- 
sidered as  being  given  under  the  same  sense  of  responsibility  as 
those  declarations  made  under  the  sanction  of  an  oath.  The 
dying  declarations  of  a  person  who  would  not  have  been  a  com- 
petent witness  while  living,  will  not  be  taken  in  evidence.  A 
statement  under  oath  is  considered  more  important  than  that  of 
a  statement  not  sworn  to,  because  it  is  supposed  the  immediate 
sanction  of,  and  admission  of  the  party's  accountability  to  God, 
and  the  idea  that  he  must  answer  for  the  truth  of  what  he  savs, 

•/      ' 

to  his  Maker,  will  induce  him  to  tell  the  truth.  The  dying 
declarations,  therefore,  must  be  made  under  the  awful  sanction  of 
an  immediate  expectation  of  meeting  God,  on  the  part  of  the 
person  making  them,  or  they  can  not  be  received  in  evidence. 
It  is  not  enough  that  the  person  fears  death,  or  looks  forward 
to  a  certain  death  in  the  future ;  he  must  expect  it, — feel  that  it 
is  impending  at  the  time.  If  his  medical  attendant  informs  him 
that  he  can  not  live,  and  he  believes  it,  then  his  statements  are 
taken  in  evidence ;  and  it  is  sufficient,  though  much  time  elapses 
before  death  actually  transpires,  if  he  expected  all  the  time  to  die 
at  any  moment. 

The  circumstances  under  which  the  declarations  are  made,  are 
considered  by  the  judge,  and  if  sufficient  he  admits  the  testimony. 
When  the  deceased  has  made  a  writing  and  signed  it,  embodying 
his  statement,  it  must  be  produced,  if  in  existence,  and  parol  evi- 
dence can  not  take  its  place. 

It  is  not  absolutely  necessary  that  the  precise  language  used 
by  the  deceased  be  given,  but  the  substance  must  be  stated. 

The  medical  man  should  therefore  note  well  the  last  words  of 
the  dying  man,  and  the  circumstances,  and  also  his  signs,  for 
such  signs,  if  intelligible,  are  also  evidence. 

1  Rex  t>.  Woodcock,  2  Leach,  Grim.  Oases,  267-556 ;  1  Greenleaf,  209. 


CHAPTER  XXII. 

PRIVILEGED  COMMUNICATIONS. 

THERE  has  existed  a  difference  of  opinion  among  Medico-legal 
writers  as  to  the  obligation  of  medical  witnesses  to  reveal  profes- 
sional secrets  upon  the  witness  stand. 

M.  Fonblanque  says,  that  when  the  ends  of  justice  absolutely 
require  the  disclosure,  there  is  no  doubt  that  the  medical  witness 
is  not  only  bound  but  compellable  to  give  evidence,  ever  bearing 
in  mind  that  the  examination  should  not  be  carried  further  than 
may  be  relevant  to  the  point  in  question ;  of  this  the  court  will 
judge,  and  protect  the  witness.1 

On  the  other  hand,  an  able  French  writer  says :  "  The  tribunals 
neither  ought  nor  have  the  power  to  exact  from  a  physician  the 
revelation  of  a  secret  confided  to  him  in  consideration  of  his 
office;  at  all  events  he  may  and  ought  to  refuse.  Religion, 
probity,  nay,  the  rights  of  society  make  this  law.  Still  more  are 
we  bound  to  secrecy  when  not  compelled  to  disclose.  Upon  this 
point  casuists  and  juris-consults  are  of  one  opinion."2 

It  was  decided  in  the  important  case  of  the  Dutchess  of 
Kingston,  "  that  in  a  court  of  justice  medical  men  are  bound  to 
divulge  these  secrets  when  required  to  do  so."  Lord  MANSFIELD. 
said  on  that  occasion :  "  if  a  medical  man  was  voluntarily  to 
reveal  these  secrets,  to  be  sure  he  would  be  guilty  of  a  breach  of 
honor  and  of  great  indiscretion;  but  to  give  that  information 


1  Med.  Juris.  160. 

*  Belloc,  Cours  de  Med.  Leq.  17. 

(  319  ) 


320  MEDICAL   EVIDENCE. 

which  by  the  law  of  the  land  he  is  bound  to  do,  will  never  be 
imputed  to  him  as  any  indiscretion  whatever." 

In  this  case  Sir  C.  Hawkins,  who  had  attended  the  duchess  as 
a  medical  man,  was  compelled  to  disclose  what  had  been  com- 
mitted to  him  in  confidence. 

This  is  the  Common  law  rule  undoubtedly,  in  both  England  and 
this  country;  while  some  of  the  States,  like  New  York,  Missouri, 
Wisconsin,  Iowa,  Indiana,  Michigan,  and  perhaps  some  others, 
have  passed  a  statutory  rule  on  the  subject,  in  the  following  lan- 
guage: "No  person  duly  authorized  to  practice  physic  or  sur- 
gery, shall  be  allowed  to  disclose  any  information  which  he  may 
have  acquired  in  attending  any  patient  in  a  professional  character, 
and  which  information  was  necessary  to  enable  him  to  prescribe 
for  such  patient  as  a  physician,  or  to  do  any  act  for  him  as  a 
surgeon."  But  a  physician  consulted  by  the  defendant  in  an 
action  on  the  case  for  seduction,  as  to  the  means  of  producing 
abortion,  is  not  privileged  from  testifying  under  this  statute,  as 
the  information  was  not  essential  to  a  proper  prescription.2 

Some  of  the  elementary  writers  insist  that  the  medical  witness 
ought  to  be  privileged  with  regard  to  secrets  confided  to  him  in 
the  course  of  his  professional  attendance,  while  others  take  the 
opposite  ground. 

Physicians,  as  a  class,  have  never  given  up  the  idea  that  they 
were  entitled  to  the  immunities  and  privileges  enjoyed  by 
the  attorney,  and  that  their  patients  were  worthy  of  the  same 
protection  as  that  meted  out  by  the  courts  to  the  client  of  the 
attorney.  Thus :  John  Gordon  Smith,  M.  D.,  an  English  writer 
on  Medical  Evidence,  whose  work  has  never  been  republished  in 
this  country,  says,  after  admitting  that  the  rule  of  law  compelled 
medical  witnesses  to  testify  on  every  point,  without  excepting 
professional  secrets ;  "  A  precedent  in  law  is  a  mighty  authority : 
and  I  am  quite  satisfied  that  a  point  which  has  been  so  often  and 


1  Hargr.  St.  Tr.  243 ;  20  How.  St.  Tr.  613,  614. 
*  Hewitt  v.  Prime,  21  Wend.  R.  79. 


PRIVILEGED    COMMUNICATIONS.  321 

so  uniformly  ruled,  will  never  be  ruled  otherwise  in  the  courts  of 
Westminster  Hall.  I  am  also  well  aware  that  to  law,  and  rules  of 
court,  we  must  yield,  or  the  administration  of  justice  would  be 
impeded.  But  although  satisfied  on  these  points,  I  am  not  con- 
tented that  we  should  be  placed  beyond  the  pale  of  those,  to  whose 
private  and  confidential  dealing  with  their  fellow  citizens,  such 
respect  is  shown.  I  will  not  go  at  large  into  this  question, 
my  design  being  merely  to  draw  the  notice  of  my  brethren  to 
the  circumstance,  and  to  put  them  upon  their  guard  as  lar  as 
possible ;  yet  will  I  say,  that  circumstances  may  occur,  in  which 
a  man  of  a  delicate  and  honorable  mind,  being  the  depository  of 
certain  things  communicated  to  him,  either  under  the  seal  of 
professional  or  private  confidence,  would  endure  much  ere  he 
would  reveal.  It  will  at  once  strike  the  manly  mind,  that  in 
regard  to  females,  we  might  be  called  upon  to  reveal  that  which 
the  promulgation  would  to  them,  be  worse  than  death  itself."1 

Dr.  Charles  A.  Lee,  the  able  and  intelligent  editor  of  the 
American  edition  of  Guy's  Forensic  Medicine,  says :  "  We  believe 
it  to  be  the  moral  right,  and  the  duty  of  medical  men,  to  refuse  to 
disclose,  in  a  court  of  justice,  secrets  intrusted  to  them  in  pro- 
fessional confidence,  and  we  have  always  acted  on  such  belief. 
If  physicians  become  the  repositories  of  secrets,  under  the  full 
conviction,  on  the  part  of  society,  of  our  moral  and  professional 
obligations  to  hold  them  sacred, — secrets  which  otherwise  never 
would  have  been  revealed, — who  can  believe  that  there  is  any 
earthly  power  which  ought  to  wring  them  from  us,  or  which  can, 
if  we  rightfully  understand  our  privileges  and  duty  ?  If  private 
confidence  is  thus  to  be  broken  upon  every  imaginary  necessity, 
where  is  the  end  to  the  mischievous  consequences  that  would 
arise,  especially  at  this  day,  where  every  trial  is  published  to  the 
world  through  the  medium  of  the  public  prints?  The  lawyer  is 
shielded  from  the  obligation  of  revealing  the  secrets  of  his  client, 
on  the  ground  that  it  is  necessary  he  should  be  acquainted  with 


1  Smith's  Analysis  of  Medical  Evidence,  93. 
21 


322  MEDICAL  EVIDENCE. 

the  real  facts  in  the  case,  for  the  purpose  of  conducting  the 
defense,  and  because  life  and  property  are  at  stake.  But  we  ask, 
if  character  and  reputation  are  not  often  of  equal  value,  and 
whether  either  of  the  former  could  be  enjoyed  without  the  pos- 
session of  the  latter?  So  also  it  may  be  observed,  that  the 
patient  communicates  freely  with  his  physician  for  the  purpose 
of  judgment ;  no  circumstances  whatever,  will  warrant  their  publi- 
cation to  the  world.  In  the  case  of  females,  such  a  disclosure 
would  be  in  the  highest  degree  indelicate,  and  often  worse  than 
any  punishment  that  could  be  inflicted.1" 

Thus  medical  men  view  the  matter,  and  thus  they  reason  upon 
it.  But  the  rule  of  the  Common  law  is  against  them,  whether 
right  or  wrong.2 

The  discovery,  vindication  and  establishment  of  truth,  and  the 
punishment  of  crime,  are  the  main  purposes  of  the  existence  of 
oourts  of  justice.  For  this  the  rules  of  law  are  established,  and 
to  this  end  witnesses  are  put  upon  the  stand,  and  they  are  to  tell 
the  whole  truth  bearing  upon  the  case,  unless  there  is  some 
special,  powerful  reason  why  they  should  not. 

The  great  interests  of  government,  life,  liberty  and  private 
property,  all  depend  upon  a  well-settled  system  of  evidence,  by 
the  rules  of  which  the  whole  truth  may  be  as  surely  as  possible 
brought  out.  Any  privilege  that  a  witness  may  enjoy,  which 
permits  him  to  retain  in  his  own  bosom  the  knowledge  of  facts 
bearing  upon  the  case  at  issue,  contravenes  the  great  object  of 
all  law,  just  to  the  extent  that  this  privilege  from  testifying  is 
permitted  to  reach.  As  facts  are  taken  or  kept  from  a  court  or 
jury,  the  means  of  arriving  at  a  just  conclusion  are  abridged,  and 
from  the  want  of  the  light  of  these  very  facts,  thus  kept  out  of 
sight,  the  ends  of  justice  may  be  defeated, — the  guilty  escape, — 
the  innocent  suffer, — and  possibly  great  public  interests  may  be 
endangered. 


»  Guy's  Med.  Juris.  16. 

2  Dixon  v.  Parmelee,  2  Verm.  Rep.  185  ;  Sherman  v.  Sherman,  1  Root,  486. 


PRIVILEGED   COMMUNICATIONS.  323 

The  reasons  then,  if  any,  for  permitting  private  interests  to 
outweigh  the  certainty  of  judicial  investigations  and  their  results, 
should,  it  would  seem,  be  cogent  and  convincing.  The  justifi- 
cation should  be  a  complete  one,  that  will  permit  a  witness  to 
refuse  information,  essential  perhaps,  to  the  just  solution  of  an 
important  issue,  possibly  involving  life.  This  information  a 
privileged  witness  is  permitted  to  refuse  to  give  to  a  jury. 
Should  not  such  witnesses  be  subjected  to  the  severest  scrutiny, 
and  confined  cautiously  and  carefully  to  the  exceptional  cases, 
where,  it  is  claimed,  greater  evil  will  result  if  the  truth  is  per- 
mitted to  come  out?  A  rule  that  limits  the  sources  of  informa- 
tion in  courts  of  justice;  that  prevents  truth  from  being  followed 
into  every  channel,  and  brought  forth  from  every  lurking  place; 
thus  hazarding  just  results ;  is  an  exception,  and  an  anomaty  in 
law,  and  should  be  subjected  to  all  the  disabilities  of  an  anomaly. 

Since  the  time  of  Elizabeth,  not  before,  the  privilege  of  the 
counsel,  solicitors,  and  attorney  to  refuse  to  testify  to  matters 
confidentially  and  professionally  obtained,  has  hardly  been  ques- 
tioned, yet  even  in  these  cases,  the  danger  and  difficulty  of  per- 
mitting the  testimony  to  be  withheld,  have  been  felt.  Chief- 
Justice  BEST  says:  "I  think  this  confidence  in  the  case  of  attor- 
neys is  a  great  anomaly  in  the  law,"1  and  Lord  Tenterden  agrees 
with  him. 

The  rule  has  been  justified  alone  as  necessary  to  secure  the 
rights  of  the  client,  and  the  free  and  unembarrassed  administration 
of  justice;  and  it  is  supposed  that  the  security  and  enjoyment  of 
civil  rights  require  that  the  client's  secrets,  when  confined  to  the 
lawyer,  shall  be  inviolate.  Judge  STORY  says :  the  privilege  is 
not  that  of  the  attorney,  but  that  of  the  client,  and  that  such 
attorney  can  not  disclose  without  the  consent  of  the  client,  if  he 
wished  to.2 

Mr.  Greenleaf  says :  the  great  object  of  the  rule  seems  plainly 


1  Broad  v.  Pitt,  3  C.  &  P.  513. 

»  Chisac  v.  Reinicker,  11  W.  294 ;  Curtis,  59. 


324  MEDICAL   EVIDENCE. 

to  require  that  the  "  entire  professional  intercourse  between  client 
and  attorney,  whatever  it  may  have  consisted  in,  should  be  pro- 
tected by  professional  secrecy."  This  is  certainly  basing  the  rule 
on  very  broad  grounds ; — possibly  too  broad.  It  will  not  be 
claimed  that  the  privilege  of  lawyers  arise  from  any  partiality  of 
the  court  toward  members  of  the  bar,  but  simply  because  he 
represents  the  client,  and  lhat  his  interests  forbid  the  publicity  of 
his  case  through  his  attorney.  The  attorney  has  no  more  rights,, 
personally  as  a  witness,  than  the  physician  or  any  other  person, 
and  if  privileged,  it  is  because  he  stands  in  the  place  of  his  client. 
Lord  Chief- Justice  BROUGHAM  says :  "  the  foundation  of  this  rule, 
is  not  on  account  of  any  particular  importance  which  the  law 
attributed  to  the  business  of  legnl  professors,  or  any  particular 
disposition  to  afford  them  protection  But  it  is  out  of  regard  to 
the  interests  of  justice,  which  can  not  be  upholden,  and  the 
administration  of  justice,  which  can  not  go  on  without  the  aid  of 
men  skilled  in  jurisprudence,  in  the  practice  of  the  courts,  and  in 
those  matters  affecting  rights  and  obligations,  which  form  the  sub- 
ject of  all  judicial  proceedings."1  The  same  learned  judge  says, 
in  another  case,  that  without  this  privilege  no  man  would  dare  to 
consult  a  professional  adviser,  with  a  view  to  his  defense  and  to 
the  enforcement  of  his  rights,  and  no  man  could  safely  come  into 
court,  either  to  obtain  redress  or  to  defend  himself.2  No  interest, 
therefore,  but  that  of  the  client,  permits  the  attorney  to  refuse  to 
give  in  his  testimony  in  the  case,  and  this  interest,  it  is  said, 
"  comprehends  the  entire  professional  intercourse  between  client 
and  attorney,  whatever  it  may  have  consisted  in." 

As  already  shown,  high  English  authority  pronounces  all  this 
kind  of  testimony  an  anomaly  in  law ;  and  Chief-Justice  SHAW 
has  said  that  "the  privilege  of  exemption  from  testifying  to  facts 
actually  known  to  the  witness,  is  in  contravention  to  the  general 
rules  of  law;  it  is,  therefore,  watched  with  some  strictness,  and 

«  Greenough  v.  Gaskill,  1  Mj.  &  R.  102,  103. 
2  1  My.  &  R.  94,  95. 


PRIVILEGED    COMMUNICATIONS.  325- 

is  not  to  be  extended  beyond  the  limits  of  that  principle  of  policy 
upon  which  it  is  allowed."  And  again  :  "  So  strictly  is  the  rule 
held,  that  the  privilege  extends  only  to  communications  m:ide  by 
the  client  to  his  attorney  for  the  purpose  of  obtaining  It  gal 
advice,  that  in  a  late  case  it  was  held,  that  a  communication 
made  by  a  client  to  his  attorney,  not  for  the  purpose  of  asking 
his  legal  advice,  but  to  obtain  information  as  to  a  matter  of  fact, 
is  not  privileged,  and  may  be  disclosed  by  the  attorney,  if  called 
as  a  witness  in  a  cause:1"  and  again,  in  another  case,  he  says,  as. 
the  rule  is  one  "having  a  tendency  to  prevent  the  full  disclosure 
of  the  truth,  it  ouo-ht  to  be  construed  strictlv."2 

«/ 

Where  there  is  no  particular  motive  for  the  disclosures  of  the 
olient  to  the  attorney,  or  to  get  information  upon  a  point  of  fact,, 
it  will  not  be  in  either  case  a  privileged  communication.  The 
reason  for  this  privilege  does  not  apply  to  instruments  of  con- 
veyance. Public  policy  requires,  that  the  facts  attending  the 
execution  of  such  instruments  should  be  publicly  known,  ibr  the 
prevention  of  fraud.3  The  attorney  is  not  permitted  to  be  the 
judge  as  to  what  is  or  is  not  privileged  from  disclosure,  but  the 
question  is  decided  by  the  court.  If  the  communication  was  made 
to  the  counsellor  in  the  character  of  a  friend,  and  not  as  counsel; 
or  before  he  was  employed ;  or  after  the  employment  has  ceased ; 
or  when  the  attorney  was  consulted  as  attorney,  but  refused  to  act 
as  such ;  or  when  the  fact  merely  took  place  in  the  presence  of 
the  attorney ;  or  when  the  matter  communicated  was  not  in  its 
nature  private ;  or  when  the  thing  disclosed  had  no  reference  to 
professional  employment,  though  disclosed  while  the  relation  of 
attorney  and  client  subsisted,  or  when  the  attorney  made  himself 
a  subscribing  witness;  or  when  he  was  directed  to  plead  the  facts 
to  which  he  is  called  to  testify ;  or  when  he  acts  simply  as  an 


1  14  Pick.  423-3. 

2  Foster  v.  Hall,  12  Pick.  98. 

3  1  Stark.  Ev.  204;  Wailsworth  v.  Hamshaw,  2  Brad.  &  Bingh.  5,  note;  Wil- 
liams v.  Muudic,  Kyau  &  Moody,  34;  S.  C.  C.  &  P.  158. 


326  MEDICAL   EVIDENCE. 

agent ;  the  attorney  is  not  privileged ;  so  anxious  are  the  courts  to 
limit  this  kind  of  testimony  in  as  close  a  compass  as  possible.1 
It  is  difficult  to  see  how  the  attorney  can  be  permitted  to- 
occupy  the  position  of  a  privileged  witness  to  the  extent  laid 
down  by  the  learned  Mr.  Greenleaf,  as  already  quoted.  There  is- 
no  doubt  but  the  tendency  of  jurisprudence  is  to  limit,  to  a  great 
extent,  if  not  altogether  abolish  this  privilege ;  therefore,  under 
the  statutes  of  Ohio  and  other  States,  the  party  to  a  civil  action 
may  himself  be  put  upon  the  stand  by  the  adverse  party  a& 
a  witness,  and  compelled  "to  testify  as  a  witness,  in  the  same 
manner,  and  subjected  to  the  same  rules  as  other  witnesses."2  If 
the  privilege  of  the  attorney  depends  upon  his  representative 
capacity,  as  it  undoubtedly  does,  how  can  he  be  privileged  in. 
his  "  entire  professional  intercourse,"  while  the  client  himself  is 
not  himself  privileged.  The  reason  for  the  attorney's  privilege 
falls  to  the  ground  when  the  client  himself  is  not  privileged. 
True,  in  the  Common  law  practice,  the  party  is  not  a  witness ; 
but  statutory  law  is  in  advance  of  the  Common  law,  and  in  this 
case  it  is  struggling  to  throw  off  all  restraints  to  the  complete 
investigation  of  all  facts  bearing  upon  the  issue  involved.  Where 
the  client  is  a  competent  witness,  the  testimony  of  his  attorney 
can  not  certainly  be  privileged  upon  principle. 

On  what  ground  is  the  criminal  exempted  from  being  a  witness  t 
Confession  of  guilt  has  always  been  encouraged  by  the  courts.. 
The  criminal  can,  with  a  considerable  degree  of  certainty,  calcu- 
late upon  a  milder  punishment  if  he  shows  penitence  by  confess- 
ing his  guilt;  the  court  then  is  ready  and  glad  to  get  the  evidences 
of  the  indicted  person's  guilt,  even  from  his  own  lips.  Why  then, 
is  he  not  compelled  to  answer  all  questions  that  might  be  put  to 
him  tending  to  elicit  the  truth,  either  by  the  direct  answer  or  by 


1  5  P.  S.  J.  65,  Penn.  Sharswood,  J. ;  1  Cain's  R.  157  ;  1  Vert.  197  ;  2  Atk. 
624;  43  R.  431 ;  43  R.  753 ;  Cowp.  846 ;  2  Ves.  189;  Str.  1122;  7  East.  R. 
357  ;  2  B.  &  B.  176  ;  3  John.  198  ;  Peake's  R.  77  ;  10  Mod.  40,  3  Burr.  1G87  ; 
7  N,  S.  179  •  14  Pick.  422. 

2  Swan's  R.  S.  663. 


PRIVILEGED    COMMUNICATIONS.  327 

involving  him  in  contradictions?  Is  it  said  that  there  will  be  a 
strong  inducement  to  perjury  ?  Is  there  not  an  inducement  to 
perjury  to  almost  the  same  extent,  where  the  party  in  a  civil  suit 
is  compelled  to  testify  against  his  own  interests?  If  that  is  an 
objection  in  one  case,  it  certainly  is  in  the  other.  The  courts  can 
not,  in  any  case,  prevent  a  witness  from  swearing  false,  they  can 
only  punish  him  when  proven  guilty ;  this  reason  then  is  hardly 
sufficient  to  privilege  the  criminal  party  where  the  civil  party  is 
obliged  to  testify. 

The  rule  is,  that  when  the  answer  tends  to  criminate,  make 
liable  to  a  penalty,  or  to  disgrace  the  witness,  he  is  excused.  In 
civil  cases  this  rule  does  not  apply :  in  all  such  cases  a  witness 
can  not  refuse  to  answer  any  question  relevant  to  the  matter  in 
issue,  though  such  answer  may  subject  him  to  a  civil  suit,  or  to 
pecuniary  loss.1 

It  is  difficult  to  see  but  one  reason  for  the  rule  privileging  the 
witness  in  criminal  cases,  and  that  is,  that  the  courts  would  find 
it  embarrassing  in  the  extreme  to  enforce  an  opposite  rule. 
Just  in  proportion  to  the  severity  of  the  penalty  attached  to  the 
crime  which  the  witness  convicts  himself  of,  will  be  the  severity 
of  the  punishment  necessary  to  compel  such  witness  to  testify ;  if 
the  penalty  is  death,  the  witness  will  suffer  every  thing  short  of 
death  before  he  will  admit  his  guilt,  when  such  punishment  follows 
the  admission.  Hence,  to  enforce  obedience  to  a  rule  requiring 
the  witness  to  criminate  himself,  the  court  must  resort  to  all  the 
severity  and  horrors  of  the  inquisition.  To  avoid  this  savage 
necessity,  and  not  on  account  of  any  special  rights  of  a  criminal 
party  over  a  civil  one,  the  rule  has  properly  been  adopted, 
although  the  reason  for  it  may  not  be  admitted. 

Under  this  view  of  the  whole  question,  how  can  the  medical 
man  ask  exemption  from  giving  to  the  court  and  jury  all  the 
light  he  may  possess  bearing  upon  the  issue?  The  question  can 
not  be  treated  cavalierly,  by  saying :  "  who  can  believe  that  there 

i  Ball  v.  Loveland,  10  Pick.  9 ;  Roscoe's  Cr.  Ev.  170. 


328  MEDICAL   EVIDENCE. 

is  auy  earthly  power  which  ought  to  wring  from  us  such  evi- 
dence; or  which  can,  if  we  rightly  understand  our  privileges 
and  our  duties."  There  must  be  a  good  and  substantial  reason 
for  the  privilege  given  if  it  should  exist,  because  such  a  rule 
contravenes  justice.  The  Common  law  knows  no  private  confi- 
dence, except  between  husband  and  wife,  and  that  of  attorney 
and  client,  as  we  have  seen,  in  which  cases  it  is  closely  guarded, 
and  only  permitted  to  a  certain  extent,  lor  reasons,  as  it  is  thought, 
of  the  highest  public  good.  The  rule  can  not  be  considered  as 
established,  that  clergymen  in  certain  cases  shall  be  exempt  from 
testifying  in  courts  of  justice,  though  there  have  been  some 
decisions  and  statutory  acts,  permitting  them  to  be  privileged 
witnesses. 

By  the  laws  of  New  York  and  of  Missouri,  no  minister  of  the 
Gospel  or  priest  of  any  denomination,  is  allowed  to  disclose  any 
confession  made  to  him  in  his  professional  character,  in  the  course 
of  discipline  enjoined  by  the  rules  or  practice  of  his  denomi- 
nation.1 

It  c;in  hardly  be  claimed  that  a  person  will  be  guilty  of  suicidal 
neglect  of  medical  attendance,  for  fear  of  the  testimony  of  medi- 
cal men.  No  such  case  has  ever  been  heard  of.  It  would  be 
criminal  for  a  physician  to  aid,  by  his  knowledge  and  science, 
in  the  commission  of  a  crime  or  the  perpetration  of  a  fraud,  and 
it  will  not  be  pretended  that  in  such  cases  the  medical  witness 
should  be  excused  from  testifying. 

If  a  medical  witness  is  allowed  to  decline  on  his  own  judgment, 
he  is  privileged  beyond  the  attorney,  for  the  court  decides  and 
not  the  witness,  whether  he  shall  be  privileged.  If  the  physician 
does  not  decide  for  himself  in  what  case  he  shall  be  privileged, 
then  the  court  must  hear  the  testimony,  and  this  will  involve  the 
necessity  of  the  testimony  of  experts,  because  the  courts  are  not 
informed  on  medical  subjects,  and  can  not  decide  as  to  the  charac- 
ter and  necessity  of  medical  treatment 

1  Phillipps'  Evidence,  139. 


PRIVILEGED   COMMUNICATIONS.  329 

Do  medical  men  claim  immunity  because  their  patients  would 
not  be  compelled  to  testify?  In  civil  cases  the  patient,  if  a  party, 
may  be  called  upon  to  testify ;  and  in  criminal  casts,  if  the  physician 
attempted  to  shield  the  indicted  person,  would  he  not  be  particp-ps 
criminis  ? 

So,  in  either  case,  it  would  seem,  he  ought  to  give  in  his  testi- 
mony in  full,  that  justice  may  be  secured,  by  the  punishment  of 
the  guilty  and  the  protection  of  the  innocent.  None  of  the 
reasons  for  permitting  the  privilege  of  the  attorney  in  behalf  of 
his  client  applies  to  the  physician  in  behalf  of  his  patient.  The 
physician  in  no  sense  represents  his  patient  in  court ;  the  only 
ground  on  which  the  attorney  is  permitted  to  refuse  to  testify. 
Is  the  extremity  of  the  patient  the  reason  why  the  physician 
should  be  privileged?  Just  as  well  might  the  benevolent  man, 
who  has  fed  and  lodged  the  hungry  fugitive  from  justice,  who  has 
lain  in  the  woods  until  death  from  starvation  has  driven  him  forth, 
claim  that  he  ought  to  be  a  privileged  witness,  in  reg  ird  to  such 
fugitive  criminal,  because  the  great  danger  and  suffering  of  the 
person,  made  it  necessary  for  him  to  apply  to  him  for  help,  as 
patients  apply  to  the  physician.  The  patient  has  no  privileges 
that  any  other  person  in  an  extremity  has  not.  The  great  ends 
of  justice  would  be  defeated,  if,  because  a  stern  necessity,  or 
supposed  necessity,  for  the  act  done  would  exclude  the  evidence. 

Those  writers  and  medical  men,  who  claim  the  privilege  of 
refusing  to  testify  for  the  medical  witness,  feel  that  the  honor  of 
the  professional  man  is  involved  if  he  does  divulge  what  has 
"tr.  inspired  in  his  practice, — they  are  undoubtedly  actuated  by  the 
highest  motives, — but  would  not  such  a  general  rule  produce  more 
evil  than  good  ?  Are  not  the  rights  of  society  paramount  to  those 
of  individuals  in  cases  of  this  kind  ? 

It  is  another  and  very  different  question,  and  one  which  will 
not  be  discussed  here,  whether  the  physician  or  surgeon  is 
under  obligations  of  secrecy,  when  not  called  upon  by  the  authori- 
ties of  the  court,  to  withhold  information  that  would  lead  to  the 
detection  of  crime  or  the  advancement  of  justice. 


330  MEDICAL   EVIDENCE. 

Two  cases  have  lately  arisen  in  the  city  of  New  York  involv- 
ing this  question.  One  is  that  of  the  younger  Dr.  Mott,  who 
was  called  upon  to  attend  as  surgeon,  a  burglar,  who  had  been 
shot  while  in  the  act,  but  who  escaped  wounded,  without  being 
identified.  From  the  account  as  published  in  the  papers  the  next 
day,  Dr.  Mott  was  satisfied  that  the  man  whom  he  treated  the 
night  before  for  a  pistol  shot  wound,  was  the  burglar ;  and  reported 
the  case  to  the  authorities,  by  whom  the  individual  was  arrested. 
There  is  no  doubt,  whatever  may  be  the  opinion  of  the  act  itself, 
but  that  Dr.  Mott  was  influenced  by  the  highest  patriotic  motives, 
in  thus  exposing  himself  to  great  personal  danger  for  the  advance- 
ment of  justice. 

The  other  case  was  connected  with  the  celebrated  Burdell  and 
Cunningham  tragedy.  Dr.  Uhl  being  consulted  professionally  by 
Mrs.  Cunningham,  to  carry  out  her  conspiracy  to  secure  the 
Burdell  estate,  he  repeated  the  matter  voluntarily  to  the  district 
attorney,  who,  through  this  information,  was  able  to  detect  and 
expose  the  whole  plan.  Both  of  these  cases  have  been  exten- 
sively discussed  and  criticised  by  the  medical  profession,  as  to  the 
obligation  or  right  of  medical  men  under  these  circumstances, 
to  make  known  information  thus  acquired,  when  not  upon  the 
witness  stand. 

NOTE.— The  Statute  of  Ohio  is  as  follows:  "  The  following  persons  shall 
not  testify  in  certain  respects :  An  attorney,  concerning  a  commnnication  made 
to  him  by  his  client  in  that  relation,  or  his  advice  to  his  client;  or  a  physician, 
concerning  a  communication  made  to  him  by  his  patient  in  that  relation,  or  his 
advice  to  his  patient,  but  the  attorney  or  physician  may  testify  by  express  con- 
sent of  the  client  or  pitiert,  and  if  tho  client  or  patient  voluntary  testify,  the 
attorney  or  physician  may  be  compelled  to  testify  on  the  subject." 


CHAPTER   XXIII. 

MEDICAL  BOOKS  AS  EVIDENCE 

NOT  only  do  medical  men  insist  upon  the  rights  of  "  privileged 
witnesses,"  but  they  also  claim  the  right  of  introducing  the 
authorized  text  books  and  elementary  ^orks  of  the  profession  in 
testimony,  for  the  purpose  of  showing  what  the  opinions  of  the 
best  and  ablest  minds  are  upon  the  particular  question  at  issue. 
They  think  the  rule  upon  the  subject  has  not  been  a  consistent 
one,  as  books  have  sometimes  been  admitted,  and  at  other  times 
excluded.  The  question  as  to  the  admissibility  of  books  has 
thus  been  kept  open ;  the  witness  claiming  the  right  to  support 
his  opinions  by  reference  to  authority,  and  the  court,  if  permitting 
it  at  all,  doing  so  by  general  consent  and  not  upon  principle. 

Dr.  Beck  says :  "  In  this  country,  I  believe,  the  objection  to- 
medical  books  has  never  been  made.  There  is  scarcely  a  case 
of  any  note,  where  testimony  has  been  required,  in  which  frequent 
reference  has  not  been  had  to  medical  works.  They  are  quoted 
and  commented  on  by  the  bench  and  bar  and  by  the  professional 
witnesses."1  The  learned  author  is  undoubtedly  mistaken  if  he 
means  that  these  books  were  generally  admitted  as  a  right.  It 
is  only  when  there  is  no  objection  that  they  are  testimony. 

On  the  trial  of  Abner  Rogers,  jr.,  tried  for  the  murder  of 
Charles  Lincoln,  warden  of  the  State  Prison,  in  1844.  the  defense 
was  insanity,  and  one  of  the  most  able  ever  made.  Every  point 
was  contested  on  both  sides  with  marked  ability,  Chief-Justice 


2  Beck,  Medical  Jurisprudence,  919. 

(331) 


332  MEDICAL   EVIDENCE. 

Shaw  presiding.     On  this  trial  medical  books  were  admitted,  but 
in  a  subsequent  case  the  same  court  refused  to  admit  them. 

The  English  and  American  authorities  agree  that  professional 
or  scientific  books  are  not  competent  evidence  in  courts  of  justice. 
In  the  case  of  Collier  v.  Simpson,  where  the  question  was,  whether 
a  prescription  was  proper  and  the  dose  not  too  large,  Chief-Justice 
TINDALL  ruled  that  medical  books  could  not  be  introduced  as  evi- 
dence to  determine  whether  the  dose  was  too  large,  saying : 
"Physic  depends  more  on  practice  than  law.  I  think  you  may 
ask  a  witness  whether,  in  the  course  of  his  reading,  he  has  found 
this  rule  laid  down."  An  attempt  was  made  to  show  that  the 
works  of  Sir  Astley  Cooper  and  Dr.  Merriman  were  authority, 
and  acted  upon  in  the  medical  profession,  when  the  Chief-Justice 
said :  "  I  do  not  think  that  the  books  themselves  can  be  read, 
but  I  do  not  see  any  objection  to  your  asking  Sir  Henry  Haifonl 
his  judgment,  and  the  grounds  of  it,  which  may  be  in  some 
degree  founded  on  books  as  a  part  of  his  general  knowledge."1 
This  is  now  the  rule  in  England.2  On  the  trial  of  the  Common- 
wealth v.  James  Wilson,  P.  H.  Sears,  in  opening  the  case  for  the 
defendant,  proposed  to  read  to  the  jury  a  definition  of  insanity, 
from  works  of  established  reputation  on  the  subject ;  and  con- 
tended that  books  written  by  lawyers  were  admissible,  even  if  the 
<3ourt  should  hold  that  the  treatises  of  medical  writers  were  not. 
But  Chief-Justice  SHAW  said :  "  Facts  or  opinions  on  the  subject 
•of  insanity,  as  on  any  other  subject,  can  not  be  laid  before  the 
jury  except  by  the  testimony  under  oath  of  persons  skilled  in 
such  matter.  Whether  stated  in  the  language  of  the  court  or  of 
the  counsel  in  a  former  case,  or  cited  from  the  works  of  legal  or 
medical  writers,  they  are  still  statements  of  facts,  and  must  be 
proved  on  oath.  The  opinion  of  a  lawyer  on  such  a  question  of 
fact,  is  entitled  to  no  more  weight  than  that  of  any  other  person 
not  an  expert.  The  principles  governing  the  admis&ibility  of 

1  Collier  v.  Simpson,  5  Car.  &  Payne,  73. 

2  Cocks  &  Punlay,  2  Car.  &  Kirw.  270. 


MEDICAL   BOOKS    AS  EVIDENCE.  33S 

such  evidence,  have  been  fully  considered  by  this  court  since  the 
trial  of  Rogers;  and  the  more  recent  English  authorities  are 
against  the  admission  of  such  evidence."1  So  in  the  case  of  Ada- 
line  Phelps,  tried  in  the  same  State  about  the  same  time,  Charles 
Allen,  for  the  defense,  undertook  to  read  from  various  mi'dical 
works  in  support  of  his  views,  but  Judge  DEWEY  said :  "  The 
rule  had  been  changed  since  the  trial  of  Rogers,  and  that  the 
court,  upon  full  consultation,  had  decided  to  exclude  all  medical 
books."2  The  court,  in  an  Iowa  case,  on  the  other  hand,  have 
decided  th.it,  "they  can  see  no  good  reason  why  the  physician 
may  not  read  the  views  and  opinions  of  distinguished  writers. 
The  opinions  of  an  author,  as  contained  in  his  works,  we  regard  as 
better  evidence  than  the  mere  statement  of  those  opinions  by  a 
witness,  who  testifies  as  to  his  recollection  of  them  from  former 
reading.  Is  not  the  latter  secondary  to  the  former?  On  the 
whole,  we  think  it  the  safest  rule  to  admit  standard  medical  books 
as  evidence  of  their  opinions  upon  questions  of  medic  il  skill  or 
practice  involved  in  the  trial.  This  rule  appears  to  us  the  most 
accordant  with  well-established  principles  of  evidence."3  The 
reasoning  in  the  above  opinion  will  not  stand  the  test  of  examin- 
ation. It  is  not  good  law  because  not  good  logic,  and  against 
precedent 

The  medical  witness  should  bear  in  mind,  that  this  rule  applies 
not  to  medical  books  especially  or  peculiarly,  but  it  is  equally 
applicable  to  treatises  on  law,  or  any  other  science.  Chief-Justice 
J.  C.  SPENCER  says  of  law  books,  that  they  u  may  be  sometimes 
read  to  inform  the  mind  of  the  court,  but  never  as  evidence."  A 
general  history  of  a  country  may  be  read,  not  precisely  as  evi- 
dence, but  to  refresh  the  memory  of  the  court  in  respect  to 
general  facts,  which  it  is  presumed  to  know.  In  an  English  case, 
Sergeant  Ludlow  proposed  to  read  from  Nicholls'  History  of 


1  Commonwealth  v.  Wilson,  1  Gray,  338. 

2  The  Monthly  Law  Reporter,  May.  1854,  p.  9. 

3  Bowman  v.  Woods,  1  Iowa  R.  441. 


334  MEDICAL   EVIDENCE. 

Brecknockshire,  a  statement  of  the  boundaries  of  that  county,  at 
the  spot  in  controversy ;  when  Baron  ALDERSON  said  :  "  This  IE  a 
history  of  Brecknockshire.  The  writer  of  this  history  probably 
had  the  same  interest  in  enlarging  the  boundaries  of  the  county 
as  any  other  inhabitant  of  it.  It  is  not  like  a  general  history  of 
Wales.  I  shall  not  receive  it."1  Mr.  Justice  BULLER  says :  that 
a  general  history  may  be  admitted  to  prove  a  matter  relating  to 
the  kingdom  at  large,  but  can  not  be  received  as  a  proof  of  a 
private  right  or  particular  custom.2  In  Percy's  case,  which  was  an 
ejectment  for  the  baroncy  of  Cackermouth,  the  lessor  of  plaintiff 
derived  his  title  from  Sir  Inghram  Percy,  and  offered  in  evidence 
Dugdale's  Baronage  of  England ;  where  it  was  stated  that  Sir 
Inghram  Percy  died  without  issue,  but  it  was  not  allowed  to  be 
given  in  evidence.  Lord  Hale  once  refused  to  let  Camden's 
Britannica  be  read  as  evidence,  to  prove  a  custom,  but  held  that 
a  general  history  might  be  given  in  evidence  to  prove  a  matter 
relating  to  the  kingdom  in  general,  because  the  nature  of  the 
thing  requires  it,  but  not  to  prove  a  particular  right  or  custom. 
Counsel  are  permitted  to  read  from  their  law  books  in  court,  not 
by  right  of  any  rule  of  evidence,  but  as  part  of  their  argument 
€ounsel  have  the  right  to  argue  any  law  point  or  matter  of  fact 
to  the  court,  but  any  thing  they  read  from  elementary  works,  is 
no  more  evidence  than  what  they  say  on  their  own  responsibility, 
but  it  may  have  more  weight  in  influencing  the  court  because  of 
the  acknowledged  ability  of  the  author,  than  the  language  of  the 
counsel.  The  court  frequently  says  to  counsel,  "you  need  not 
read  that  authority,  I  am  familiar  with  it,  but  I  will  be  glad  to 
hear  what  your  opinion  of  the  law  applicable  to  the  case  is,  and  your 
reasons  for  such  opinion."  But  after  the  elementary  works  and 
reports  are  read,  the  court  is  at  liberty  to  charge  the  jury,  or 
decide  contrary  to  those  authorities,  if  they  are  not  the  reports 
of  a  Superior  court,  to  which  an  appeal  will  lie.  The  lawyer  selects 


i  Evans  v.  Getting,  6  Car.   &  Payne,  586. 
»B.  N.  P.  248. 


MEDICAL   BOOKS   AS   EVIDENCE.  335 

the  authorities  which  he  believes  contain  the  law,  but  then  he 
supports  this  position  by  argument ;  so  the  medical  witness  may 
base  his  opinion  more  or  less  upon  the  authorities  he  deems 
worthy  of  the  greatest  confidence,  and  he  has  a  right  to  give  the 
opinions  of  such  writers  in  evidence,  but  he  must  be  so  far  master 
of  their  opinions  and  so  understand  them,  as  to  make  them  his 
own  under  oath. 

The  medical  witness,  therefore,  has  no  just  grounds  of  com- 
plaint, because  his  books  are  not  received  in  evidence.  The  court 
honors  his  individual  opinion  as  of  higher  value  than  that  of  an 
outside  author.  The  court  presumes,  that  from  reading  these 
authors,  close  thought  and  actual  observation  and  experience; 
the  witness  under  oath,  subject  to  a  cross-examination,  will  more 
certainly  enlighten  the  case  than  if  it  depends  upon  the  published 
opinions  of  authors,  who  perhaps,  had  a  favorite  theory  to  support 
or  an  old  prejudice  to  influence  them,  on  a  question  or  subject 
constantly  advancing.  Then  the  author  himself  may  have 
changed  his  opinions  since  the  book  was  written. 

Experience  alone  does  not  make  up  a  valuable  scientific  opinion : 
if  this  is  the  principal  element  it  is  comparatively  worthless. 
Experience  in  medicine,  though  of  some  value  to  a  witness,  yet 
it  is  often  placed  higher  than  its  proper  place.  An  intelligent 
medical  opinion  is  but  seldom  based  upon  experience  alone,  or 
principally.  Abercrombie  says :  "  In  point  of  fact,  the  knowl- 
edge which  is  acquired  by  an  individual,  through  his  own  percep- 
tion and  reflection,  is  but  a  small  part  of  what  he  possesses; 
much  of  the  knowledge  possessed  by  every  one  is  acquired 
through  the  perception  of  other  men."1  Dr.  Campbell,  an  English 
writer,  observes  that,  "  what  has  been  rightly  perceived  may  be 
misremembered,  —  what  is  rightly  remembered,  may,  through 
incapacity,  or  through  ill  intention,  be  misreported,  and  what  is 
rightly  reported  may  be  misunderstood.  In  any  of  these  four 
ways,  therefore,  either  of  defect  of  memory,  of  elocution,  or  of 

1  Abercrombie  on  the  Intellectual  Powers,  p.  47. 


336  MEDICAL  EVIDENCE. 

veracity  in  the  relator,  or  by  misapprehension  in  the  hearer,  there 
is  a  chance  that  the  truth  received  by  the  information  of  the  senses, 
may  be  misrepresented  or  mistaken."  Dr.  Gordon  Smith  says : 
"  It  is  very  possible,  therefore,  that  he  who  depends  upon  his 
experience  may  be  inferior,  as  to  knowledge  and  intelligence,  to 
the  diligent  student ;  for  an  accidental  observer  may  be  unquali- 
fied to  make  use  of  his  opportunities,  while  the  other  may  acquire 
much  information,  without  going  beyond  the  labors  of  ot  ers. 
The  man  of  experience,  moreover,  has  to  labor  as  much  single 
handed  as  all  the  rest  put  together,  ere  he  can  equal  them  in 
pretension;  while  the  student  again  may  have  opportunities  of 
experience  to  a  minor  extent,  but  will  make  a  vastly  better  use 
of  a  few  than  the  uninformed  can  of  many.  Presumed  experience, 
for  that  is  certainly  what  the  word  in  its  ordinary  use  must  be 
restricted  to,  is  in  a  great  measure  accidental ;  it  must  fall  to  the 
share  of  different  individuals,  in  different  forms  and  degrees ;  and 
I  believe  that  no  small  portion  of  that  odious  discrepancy  which  has 
prevailed  among  medical  witnesses,  whereby  the  lustre  of  medicine 
itself  has  been  so  much  tarnished,  is  chargeable  to  the  prevalent 
affectation  of  being  men  of  experience  rather  than  men  of  learn- 
ing,— to  the  over-anxious  desire  of  being  extensively  employed, 
rather  than  solidly  instructed  and  properly  qualified."1  It  is 
dangerous,  therefore,  for  a  medical  witness,  when  upon  the  stand, 
to  depend  in  making  up  his  opinions  upon  his  own  personal 
experience,  instead  of  basing  them  upon  the  elementary  writers 
upon  the  subject.  With  a  thorough  acquaintance  of  the  standard 
writers  on  the  science  of  medicine,  he  is  qualified  to  give  an 
opinion  of  his  own  on  the  matter  at  issue.  It  may  be  his  own 
experience,  but  he  has  the  satisfaction  of  knowing  that  he  is  sus- 
tained by  authority.  This  gives  to  him  confidence  and  certainty, 
and  the  opinion  is  so  received  by  the  court  and  jury.  He  leaves 
the  stand  with  an  enhanced  reputation, — his  profession  vindicated 
and  honored. 

1  Smith's  Analysis  of  Medical  Evidence,  p.  126. 


MEDICAL   BOOKS   AS   EVIDENCE.  337 

Dr.  Charles  A.  Lee,  remarks  upon  this  point :  "  How  often  do 
we  see  medical  men  of  scanty  experience,  priding  themselves 
upon  their  experience,  and  disparaging  all  knowledge  derived 
from  books,  and  by  so  doing,  demonstrating  alike  their  ignorance 
and  want  of  sense ;  for  what  is  individual  experience  at  the  best, 
when  compared  with  the  vast  store  accumulated  by  the  sages  of 
the  profession  in  all  ages.  It  is  but  as  a  drop  of  water  compared 
with  the  ocean;  a  moment  of  time  with  eternity.  Personal 
experience,  unless  enlarged,  improved,  and  corrected  by  that  of 
others,  is  of  little  value.  Medical  testimony,  when  of  any  value, 
is  but  little  else  than  a  reference  to  authority."1 

The  authorities,  as  we  have  seen,  permit  the  witness,  in  giving 
his  opinions,  to  give  the  reasons  that  bring  him  to  his  conclusions, 
which,  in  the  language  of  Tindall,  "  may  be  in  some  degree 
founded  on  books,  as  a  part  of  his  general  knowledge."  He  may 
even  read  from  medical  books  while  on  the  stand,  adopting  what 
he  reads  or  refers  to  as  his  own  opinions,  and  the  jury  will  be 
instructed  to  receive  and  weigh  such  matter  as  evidence. 

In  this  way  and  under  such  a  license,  all  that  the  medical  wit- 
ness wishes  to  indorse  under  oath  from  any  particular  writer  goes 
to  the  jury  and  nothing  more;  thus  avoiding  the  loose  habit  of 
permitting  whole  medical  libraries  to  be  given  in  evidence,  at  the 
option  of  counsel  or  witnesses. 

1  Guy's  Medical  Jurisprudence,  p.  20. 
22 


CHAPTER  XXIV. 

INSANITY— KNOWLEDGE  ON  THE  SUBJECT  LIMITED. 

INSANITY  stands  at  the  head  of  Medico-legal  questions,  in  its 
relation  to  Criminal  and  Civil  Jurisprudence.  The  difficulties 
that  surround  its  study  seem  to  be  insurmountable.  As  an  ele- 
ment in  criminal  trials  it  is  daily  becoming  more  prominent  and 
troublesome. 

Countless  volumes  having  been  written  by  the  ablest  minds 
of  the  medical  profession  upon  the  great  subject;  quarterly  and 
monthly  periodicals  having  been  established  expressly  for  its  dis- 
cussion and  elucidation ;  some  of  the  ablest  thinkers  in  medicine 
having  made  it  for  a  life  time  a  specialty ;  the  patronage  and  sup- 
port of  governments  being  freely  given  to  aid  its  unfortunate 
victims  and  those  who  take  care  of  them ;  the  popular  mind  and 
general  reader  come  very  naturally  to  conclude  that  the  whole 
subject  is  well  understood :  or  at  least,  that  very  much  must  be 
well  settled  and  satisfactorily  established ;  so  that  when  the  usually 
calm  and  transparent  mental  ocean  world,  becomes  turbid  and 
tumultuous  from  the  action  of  the  storms  that  sometimes  sweep 
across  its  surface;  it  may  still  be  safely  navigated, — each  sunken 
rock  and  shallow  bottom  detected,  aided  and  guided  by  the  beacon 
lights  thus  established  upon  the  headlands. 

With  this  general  impression  prevalent,  it  may  be  humiliating 
to  the  pathological  and  psychological  student  or  scholar,  to  admit, 
that  notwithstanding  all  that  has  been  accomplished  by  the 
accumulation  of  facts,  and  the  enunciation  and  discussion  of 
theories  upon  the  subject  of  insanity,  especially  during  the  last 
century,  the  whole  question  is  still  sub  judice. 

This  state  of  the  subject  results,  not  from  want  of  laborious, 
patient  research  by  those  best  qualified  to  make  it ;  but  it  depends. 

(338) 


INSANITY KNOWLEDGE   ON   THE   SUBJECT   LIMITED.  339 

upon  the  inherent  elementary  difficulties  investing  and  protecting 
the  whole  subject  of  aberration  of  mind, — difficulties  that  no 
human  effort  however  great,  has,  up  to  this  time,  been  able  to 
.surmount  or  remove. 

After  a  protracted,  learned  and  almost  profitless  discussion 
between  the  two  schools  of  psychologists, — the  materalist  or 
pathological  psychologist,  and  the  spiritualist,  or  pure  metaphysi- 
cian, the  main  points  of  dispute,  whether  hallucinations  in  par- 
ticular and  insanity  in  general  are  idiopathic, — depending  upon 
a  derangement  in  the  very  essence  of  mind  itselfj — or  whether 
they  are  symptomatic) — arising  from  actual  disease  in  the  brain, 
through  which  the  mind  manifests  itself  to  the  external  world, — 
-are  perhaps  as  far  from  being  settled  as  when  the  question  was 
first  propounded.  Each  party,  it  is  true,  considers  the  question 
settled  according  to  its  favorite  theory.1 

The  ablest  authors  and  teachers  on  the  subject  of  insanity, 
generally  hold  to  the  material  or  somatic  theory ;  yet,  able  as  they 
.are  admitted  to  be,  and  notwithstanding  the  time  and  labor  many 
of  them  have  devoted  to  the  subject,  and  the  confidence  they 
feel  that  their  theory  is  correct,  we  have  no  settled  classification  or 
definite  description  of  the  pathological  changes  upon  which  they 
say  the  insane  phenomena  depend.  Nor  indeed,  have  they  told  us 
definitely  where  these  pathological  changes  are.  They  are  gener- 
ally located  in  the  brain.  Dr.  Rush  based  the  disease  in  the  blood. 

Dr.  Ray,  whose  ability  is  only  equalled  by  his  ardor,  in  his 
defense  of  the  physical  view  or  character  of  the  subject,  is 
compelled  to  acknowledge  that  "these  pathological  changes  are 
not  sufficiently  definite  to  admit  of  classification,  or  of  practical 
application  in  the  various  kinds  of  insanity."  For  what  useful 
purpose  then,  is  this  theory  of  value  in  solving  the  mighty  prob- 
lem of  insanity  ?  The  same  writer  thinks  these  changes  in  the 


1  Dr.  H.  Morns'  "  Remarks  on  Insanity,  its  Nature  and  Treatment,"  London, 
1850 ;  Criminal  Jurisprudence  Considered  in  its  Relation  to  Cerebral  Organization, 
London,  1843. 


340  MEDICAL   EVIDENCE. 

organic  structure,  "to  us  are  chiefly  valuable,  as  showing  the 
frequent  liability  to  disease,  either  from  excessive  exertion  or 
disuse  of  its  own  powers,  or  from  its  pronene^s  to  be  affected  by 
morbid  irritations,  that  radiate  from  other  parts  of  the  body. 
We  learn  from  these  also,  that  changes  of  structure  may  proceed 
in  the  brain  as  in  other  organs,  to  an  incurable  degree,  ivithout 
giving  rise  to  much,  if  any  very  perceptible  disturbance  of  its 
functions,  until  some  striking  and  unexpected  act  leads  the  en- 
lightened physician  to  suspect  its  existence,  and  draws  down  upon 
the  unfortunate  subject  the  restraints  and  penalties  of  the  law.'r 
It  is  the  act  of  the  person,  and  not  the  pathological  symptoms,, 
that  determines  the  insanity,  according  to  this  writer.  This  is 
not  very  clear.  The  distinguished  author  not  only  fails  to  give 
any  cases  wherein  his  theory  is  of  practical  use,  but  thus  directly 
admits  its  impractability. 

If  the  brain  may  suffer  from  disease  to  an  "  incurable  degree,, 
without  giving  rise  to  much,  if  any  perceptible  disturbance  of 
its  functions,"  how  is  it  that  this  condition  of  structure  forms  the 
basis,  and  gives  rise  to  insanity  ?  Or  how  do  we  know  it  depends 
upon  diseased  brain  ?  Again  he  says :  "  Whatever  opinion  may 
be  entertained  of  the  nature  of  mind,  it  is  generally  admitted,  at 
least  by  all  enlightened  physiologists,  that  it  must  of  necessity  be 
put  in  connection  with  matter,  and  that  the  brain  is  the  part  of 
the  body  by  means  of  which  this  connection  is  effected.  Little 
as  ive  know  beyond  this  single  fact,  it  is  enough  to  warrant  the 
inference  that  derangement  of  the  structure,  or  of  the  vital  actions 
of  the  brain,  must  be  followed  by  abnormal  manifestations  of  the 
mind ;  and  consequently,  that  the  presence  of  the  effect  indicates 
the  existence  of  the  cause.  This  leads  us  to  the  source  of  the 
hesitation  that  has  been  evinced  by  pathologists  to  consider  the 
brain  as  the  seat  of  insanity." 

It  is  undoubtedly  true  that  all  enlightened  physiologists  agree 
that  the  mind  must  be  put  in  connection  with  matter  before  it 
can  be  manifested ;  still  it  is  equally  true  that  they  agree  that 
matter  must  be  put  in  connection  with  mind,  before  there  are  any 


INSANITY KNOWLEDGE   ON   THE   SUBJECT    LIMITED.  341 

mental  phenomena.  A  union  being  necessary  to  produce  a  mani- 
fest effect,  how  are  we  to  determine  upon  which  the  disease  origi- 
nally depends  ?  Yet  Dr.  Ray  stakes  his  favorite  theory  upon 
"  this  single  fact,  little  as  we  know  beyond  it,"  and  argues  that 
it  warrants  the  inference  that  derangement  of  the  structure  of  the 
brain,  or  of  the  vital  actions,  must  be  followed  by  abnormal  manifes- 
tations of  the  mind ;  and  that  consequently  the  effect, — insanity, — 
indicates  the  existence  of  the  cause.  He  has  already  told  us  that 
there  may  exist  disease  of  the  brain  to  a  fatal  extent,  without 
the  mind  apparently  participating  or  sympathizing,  or  being 
-affec'ed  by  it.  But  he  speaks  of  the  vital  actions  being  diseased. 
These  vital  actions  connected  with  and  constituting  mental  mani- 
festations, are  the  very  phenomena  under  discussion,  and  may  be 
principally  mind;  at  least  they  partake  largely  of  the  mental 
force  operating  as  it  does  through  the  brain. 

The  proposition  is  well  established  that  an  injury  or  disease  of 
the  brain  or  disease  of  the  body  may  produce  insanity,  but  facts 
also  show  that  this  is  not  necessarily  the  case.  It  is  also  well 
known  that  in  many  of  the  worst  cases  of  insanity,  a  post  mortem 
examination  reveals  no  diseased  structure.  Sometimes  insanity 
arises  from  a  sudden  injury  to  the  brain ;  at  other  times  it  is 
cured  by  the  s:ime  kind  of  an  injury. 

Able  physiologists  and  metaphysicians,  like  Professors  Parker 
and  Oilman,  of  New  York,  while  they  agree  with  Dr.  Ray,  that 
insanity  always  depends  upon  diseased  physical  organization, 
like  him,  they  are  wholly  unable  to  show  wherein  this  physic  »1 
derangement  consists. 

On  the  trial  of  Charles  B.  Huntington,  for  forgery,  where  the 
defense  was  "  moral  insanity,"  Mr.  Noyes,  attorney  for  the  State, 
asked  Dr.  Parker  the  following  questions : 

Mr.  N. — '-When  you  say  that  he  has  no  appreciation  of  his 
situation,  because  of  that  diseased  organization,  you  mean  of 
course  by  that,  menial  organization  ?" 

Dr.  P. — "  No,  I  do  not ;  I  mean  the  organization  of  the  brain, 
— I  mean  the  disease  of  the  brain." 


342  MEDICAL   EVIDENCE. 

Mr.  N. —  "Do  you  mean  diseased  moral  organization?" 

Dr.  P. — "I  mean  the  diseases  of  the  functions  of  the  brain." 

Mr.  N. — "  What  particular  organ  is  diseased  ?" 

Dr.  P.— «  The  brain." 

Mr.  N. — "Do  you  mean  to  say  that  his  mental  organization 
was  such  that  he  could  not  resist  the  impulse  or  tendency  to 
commit  forgery  ?" 

Dr.  P. — "I  do;  the  'tendency,'  that  is  the  word,  sir." 

Mr.  N. — "  That  is  the  point  then,  upon  which  you  place  it, — 
that  his  mental  organization  was  such  that  he  could  not  resist 
the  tendency  to  commit  forgery.  Now  why  could  he  not  resist 
it?" 

Dr.  P. — "Because  of  his  diseased  organization.  I  do  not 
mean  mental  organization.  The  organization  of  the  mind  I 
know  nothing  about" 

Mr.  N. — "  Do  you  say  physical  or  mental  ?" 

Dr.  P.— «I  say  physical." 

Mr.  N. — "  You  say  so  because  of  his  diseased  physical  organi- 
zation ?" 

Dr.  P.— "Yes." 

Mr.  N. — "What  was  the  disease  of  his  physical  organization 
which  prevented  him  from  resisting  the  tendency  to  commit 
forgery  ?" 

Dr.  P. — "  /  am  unable  to  give  you  the  pathological  anatomy  of 
the  case" 

Mr.  N. — "  Is  that  equivalent  to  saying  that  you  are  unable  to 
give  the  reason  why  he  was  unable  to  resist  the  tendency  to  com- 
mit forgery  in  consequence  of  his  organization?" 

Dr.  P.— "No,  sir." 

Mr.  N.— «  State  what  it  is." 

Dr.  P. — "  He  had  certain  manifestation — certain  symptoms. 
I  am  now  speaking  of  what  I  saw." 

.  Mr.  N. — "My  question  was:  what  was  there  in  his  physical 
organization  which  prevented  him  from  being  able  to  resist  the 
tendency  to  commit  forgery  ?" 


INSANITY KNOWLEDGE   ON   THE   SUBJECT   LIMITED.  343 

Dr.  P. — "  That  is  the  difficulty,  the  precise  nature  of  which  I 
can  not  explain.  It  is  difficult  to  glue  a  reason" 

Professor  Oilman  being  a  witness  on  the  same  occasion,  made 
the  following  statement,  after  saying  that  he  believed  the  prisoner 
to  be  insane. 

Mr.  N. — "  How  would  you  characterize  that  unsoundness  ?" 

Dr.  G. — "I  do  not  know  that  I  can  give  it  any  name  other 
than  that  it  was  insanity  or  unsoundness." 

Mr.  N. — "  Would  you  say  intellectual  or  moral  ?" 

Dr.  G. — "I  think  the  two  things  were  mixed  together.  If 
this  man  had  no  intellectual  disturbance,  he  would  appreciate  his 
position,  and  not  talk  of  getting  out  of  this  as  he  did.  Then,  as 
to  this  moral  sense,  there  does  not  seem  to  me  to  be  any  of  it." 

Mr.  N. — "  Now,  whether  insanity  be  intellectual  or  moral,  what 
is  your  view  of  it?" 

Dr.  G. — "  I  refer  insanity  to  physical  organization." 

Mr.  N. — "You  take  it  then  that  the  brain  is  diseased  in  all 
cases  where  insanity  exists." 

Dr.  G.— " I  think  so." 

Mr.  N. — "  Insanity  of  intellect  is  that  which  affects  the  intellect 
alone?" 

Dr.  G. — "The  brain  is  injured.  In  one  case  the  intellect  is 
impaired ;  in  another  the  moral  nature  is  destroyed.  They  are 
both  insane, — both  result  from  physical  change  in  the  brain." 

Mr.  N. — "And  what  that  physical  change  is,  is  entirely  im- 
possible to  tell  ?" 

Dr.  G.— "Entirely" 

Mr.  N. — "  That  is  not  within  the  compass  of  human  knowl- 
edge?" 

Dr.  G. — tl  It  is  not,  so  far  as  I  /enow,  within  the  measure  of 
the  acquired  knowledge  which  we  at  present  have." 

Dr.  Forbes  Winslow,  the  able  editor  of  the  Psychological  Journal, 
of  London,  says :  he  has  examined  no  less  than  ten  thousand  cases 
of  insanity  reported  by  different  authors,  with  a  view  to  ascer- 
tain if  there  was  physical  disease  as  the  basis  of  the  trouble ;  and 


344  MEDICAL    EVIDENCE. 

the  result  is  perfectly  satisfactory  to  him,  of  the  material  cause 
of  mental  derangement :  yet,  he  says :  "  I  do  not  maintain  that 
I  am  in  a  position  to  describe  the  peculiar  and  specific  alterations 
which  some  allege  to  give  origin  to  that  derangement  of  the 
action  of  thought  to  which  we  apply  the  term  insanity.  Admit- 
ting such  a  discovery  to  be  beyond  the  range  of  finite  intelligence, 
it  does  not,  in  the  slightest  degree,  militate  against  the  material 
view  just  propounded."1 

Dr.  D.  Meredith  Reese  thinks :  "  The  brain  is  now  recognized 
as  the  organ  or  instrument  of  the  mind,  in  every  enlightened 
creed,  either  among  jurists,  theologians,  or  physicians.  The 
mind  sits  enthroned  in  its  immaterial  majesty,  employing  the 
brain,  and  its  continuous  elongation  in  the  nerves,  not  only  in 
directing  all  the  intellectual,  moral,  and  instinctive  faculties,  but 
in  the  perception  by  the  several  senses,  and  in  the  mobility  of 
the  voluntary  muscles,  in  obedience  to  the  will ;  and  in  a  subordi- 
nate way,  by  innervation,  it  may  be  regarded  as  enabling  every 
organ  and  tissue  in  the  human  body  to  perform  its  destined 
function,  in  conformity  to  the  vital  laws." 

Thus  the  ablest  advocates  of  the  doctrine,  that  insanity  depends 
always  upon  disease  of  the  structure  of  the  brain,  or  of  some 
other  part  of  the  body,  are  unable  to  tell  what  or  where  it  is. 

On  the  other  hand,  difficulties  of  equal,  and  perhaps  greater 
magnitude,  stare  those  psychologists  in  the  face  who  reject  the 
material  explanation,  and  thereby  admit,  if  not  squarely  declare, 
that  the  immaterial,  immortal  essence  of  pure  thought  may  be 
subject  to  disease.2  That  this  Godlike  principle  is  liable  to  become 
diseased  like  the  grosser  parts  of  the  singularly  intricate  com- 
bination we  call  the  physical  man.  Is  not  this  contrary  to  our 
conception  of  that  wonderful  spirit  that  thinks  within  us  ?  If  the 
spiritual  principle  is  subject  to  disease,  why  not  to  death, — to 
complete  destruction  or  dissolution,  the  natural  result  of  disease  ? 


1  Journal  of  Psychological  Medicine,  Vol.  7,  212. 

2  See  Dr.  Monroe's  Remarks  on  Insanity,  etc.,  London,  1850. 


INSANITY — KNOWLEDGE   ON   THE   SUBJECT    LIMITED.  345 

How  can  that  subtle,  mental  essence,  which  has  neither  members 
nor  parts,  be  disordered?  How  can  the  immortal  principle 
within  us  decay  ?  It  can  not  be ;  disease,  disorder,  decay,  all 
belong  to  the  body,  and  to  the  body  only ;  and  consequently  we 
must  place  the  essential  seat  of  insanity  in  the  body,  not  the 
mind."1 

It  does  not,  however,  follow  conclusively  that  because  mind  is 
immaterial,  it  can  not  become  diseased  in  itself,  nor  does  this  view 
render  the  immortality  of  the  soul  less  probable  and  true. 

Sir  Benjamin  Brodie,  Bart.,  D.  C.  L.,  the  distinguished  surgeon, 
physiologist  and  psychologist,  says :  "  I  entirely  agree  with  you 
in  the  opinion  that  we  must  admit  the  existence  of  the  Deity  as 
a  fact  well  established  as  that  of  the  law  of  gravitation,  and  that 
in  doing  so,  we  must  further  admit  that  mind  may  and  does  exist 
independently  of  bodily  organization.  Be  it  also  admitted  that 
mind,  in  its  humblest  form,  is  still  mind,  and  that  immeasurable 
as  the  distance  between  them  may  be,  it  must,  nevertheless,  be 
regarded  as  being  of  the  same  essence  with  that  of  the  Deity 
himself.  For  my  own  part,  I  find  no  difficulty  in  conceiving  the 
existence  of  mind  independently  of  corporeal  organs.  It  seems 
to  me,  the  best  writers  on  mental  philosophy  have  erred  in  con- 
sidering the  mind  too  abstractedly,  and  in  not  taking  sufficiently 
into  the  account  the  physical  influences  to  which  it  is  subjected.  I 
am  aware  that  mental  derangement  may  in  many  instances  be 
traced  to  moral  causes  as  its  original  source,  and  far  be  it  from 
me  to  assert  that  the  one  indivisible  percipient  thinking  being, 
which  each  of  us  feels  himself  to  be,  may  not  be  in  itself  liable 
to  changes,  independently  of  any  previous  change  in  the  material 
structure  with  which  it  is  associated."2 

Insanity  may  not  be  either  a  disease  of  the  body  or  of  the 
mind,  but  may  involve  both.  If  this  is  not  the  true  view  of  the 
matter,  how  is  it  that  the  disease  is  more  frequently  cured  by  a 

1  Prof.  Gillman's  Introductory  Address  on  the  Relations  of  tho  Medical  and 
Legal  Profession,  p.  18. 

a  Mind  and  Matter,  pages  40,  95. 


346  MEDICAL   EVIDENCE. 

judicious  combination  of  moral  and  medical  treatment,  and 
almost  always  remediless  by  unassisted  nature  ? 

An  able  writer  says :  u  It  is  not  a  purely  corporeal  disease, 
like  one  of  the  nervoses;  it  is  not  a  nervous  affection  merely, 
but  a  nervosis,  and  something  more;  neither  is  it  purely  a 
mental  affection,  or  disease.  Both  mind  and  body  are  at  fault. 
According  to  the  views  of  Feuchterleben,  it  is  their  relation  that 
is  diseased, — of  the  body  to  the  mind,  so  that  perception  is  mor- 
bid,— of  the  mind  to  the  body, — so  that  volition  is  disordered. 
From  which,  then,  does  that  disturbed  relation  proceed,  which 
when  established,  becomes  reciprocal ?"  *  *  *  "I  repeat, 
that  insanity  is  not,  strictly  speaking,  to  be  termed  either  a 
bodily  or  a  mental  disease, — that  it  is  a  disturbed  reciprocal 
relation  of  mind  and  body ;  but  that,  in  its  origin,  it  is  sometimes 
a  mental,  sometimes  a  bodily  disease."1 

Dr.  Carpenter,  the  distinguished  English  physiologist,  says: 
"  The  degree  in  which  the  operations  of  the  mind  are  dependent 
upon  its  material  instruments,  is  a  question  which  can  not  be 
regarded  as  conclusively  determined  by  scientific  evidence  alone, 
and  it  has  little  practical  bearing  on  physiological  research.  The 
doctrine  usually  regarded  as  having  the  best  Scriptural  basis, — 
that  the  mind  has  an  existence  altogether  distinct  from  that  of  the 
body, — is  attended  with  several  difficulties,  of  which  those  arising 
from  the  phenomena  of  insanity  are  perhaps  the  most  important. 
On  the  other  hand,  the  opinion  held  by  some,  that  mental  phe- 
nomena are  the  mere  result  of  material  changes,  appear  to  involve 
difficulties  at  least  equal,  among  which  may  be  noticed,  the  con- 
sciousness of  personal  identity,  preserved  throughout  the  con- 
tinued and  rapid  changes  to  which  the  nervous  system  is  subject. 
The  assertion,  however,  that  physiological  operations  can  not  be 
the  result  of  material  changes,  is  based  on  the  assumption  that 
we  know  far  more  of  the  essential  character  of  both  than  is 


1  Robert  Jameson,  M.  D.,  Professor  of  Medical  Jurisprudence  in  the  Univereity 
of  King's  College,  Aberdeen. 


INSANITY KNOWLEDGE   ON   THE   SUBJECT   LIMITED.  347 

admitted  by  the  best  metaphysicians  to  be  the  case  regarding 
either.  Tim  is  a  question  which  scarcely  comes  within  the  boun- 
daries of  human  knowledge. 

Thus  we  see,  at  the  very  threshold  of  investigation  on  this 
subject,  that  the  metaphysician  and  pathologist  are  unable  to  deter- 
mine satisfactorily  the  nature  of  the  cause  or  the  nature  of  the 
effect  they  witness.  Though  enthusiastic,  and  anxious  to  press 
up  directly  into  this  wonderful  and  luminous  temple,  where  thought 
dwells,  they  hear  a  voice  like  the  voice  of  God,  saying:  "Put 
off  thy  shoes  from  off  thy  feet,  for  the  ground  whereon  thou 
standeth  is  holy  ground." 

Not  only  at  the  outset  do  difficulties  arise,  but  they  deepen 
and  multiply  constantly  at  every  step,  in  the  investigation  of 
insanity.  These  difficulties  form  an  essential  element  in  determin- 
ing all  questions  of  insanity.  It  is  because  of  these  difficulties, 
that  the  great  labor  and  study  bestowed  upon  them  by  the  medi- 
cal profession,  have  proved  so  fruitless.  It  should  be  no  reproach 
however,  to  this  great  profession,  that  because  it  has  sunk  many 
shafts  with  great  skill,  labor  and  perseverance,  that  the  deep  and 
extensive  mine  is  still  hardly  reached,  and  to  a  great  extent  unex- 
plored. 

There  is  a  vast  difference  between  arranging  sanitary  insti- 
tutions and  favorable  external  circumstances  for  the  insane  man, 
and  grappling  with  the  invisible,  intangible,  ever  varying  spirit 
of  insanity  itself.  Much  has  been  accomplished  in  the  former,, 
nothing  comparatively  in  the  latter. 

The  various  eccentricities  of  sane  men, — the  diversity  of 
motives  influencing  their  conduct,  and  the  cunning  of  the  insane, 
greatly  embarrass  the  problem. 

The  eccentricities  of  genius  in  particular,  so  much  resemble 
insanity,  who  can,  without  long  observation  and  the  careful  weight 
and  consideration  of  a  series  of  various  acts,  determine  and  ascer- 
tain which  is  the  normal  and  which  the  insane  state? 

Knaggs,  in  his  work  on  unsoundness  of  mind,  says:  "There 
was  an  old  man  well  known  in  London  during  the  last  century,. 


348  MEDICAL   EVIDENCE. 

who  was  of  an  ungainly  appearance,  and  subject  to  occasional 
attacks  of  hereditary  melancholy.  So  inconsistent  was  he  in  his 
habits,  that  sometimes  he  practiced  great  abstemiousness,  and  at 
other  times  devoured  large  meals  with  brutish  slovenliness  and 
voracity.  Sometimes  he  would  persist  in  drinking  nothing  but 
water,  but  occasionally  drank  wine  by  tumblersfhl.  His  income 
was  far  from  large,  and  not  of  a  certain  amount,  yet  he  kept  a 
set  of  old  men  and  women  about  his  house,  whose  bickerings  and 
disagreements  now  and  then  drove  him  out  of  doors.  He  was  in 
general  very  loquacious,  but  has  been  known  to  sit  in  company 
and  drink  a  dozen  cups  of  tea,  without  speaking  a  syllable. 
When  not  engaged  in  discoursing,  it  was  his  custom  to  keep 
muttering  to  himself.  In  walking  he  performed  strange  gesticu- 
lations, and  would  not  go  in  at  a  door  unless  he  could  effect  his 
^ntry  in  a  certain  preconceived  number  of  steps,  and  so  as  to 
introduce  himself  on  a  particular  foot, — turning  back  and  recom- 
mencing until  he  succeeded  as  he  desired.  There  was  a  row  of 
posts  near  his  house,  which  he  would  not  pass  without  touching 
singly,  and  if  he  omitted  one  in  the  series,  he  retraced  his  steps 
to  remedy  the  neglect.  He  hoarded  up  orange  skins  for  some 
mysterious  purpose  he  would  never  divulge.  He  suffered  remorse 
of  conscience  for  having  taken  milk  in  coffee  on  Good  Friday.  Ho 
believed  in  ghosts,  and  went  ghost  hunting  in  Cock  Lane,  and 
maintained  that  he  heard  his  mother  calling  for  him  by  name  in 
the  world."  Was  not  this  man  insane?  So  (ar  from  it,  Dr. 
Johnson  was  by  consent,  regarded  one  of  the  most  vigorous 
thinkers  of  his  time,  and  to-day  he  is  called  one  of  the  greatest 
.sages  and  ablest  writers  that  ever  lived. 

The  lunatic  not  unfrequently  shows  more  judgment  and  cunning 
than  the  sane.  "  A  short  time  ago,  a  parish  officer,  from  the  neigh- 
borhood of  Middleton,  took  a  lunatic  to  the  asylum,  pursuant  to 
.an  order  signed  by  two  magistrates.  As  the  man  was  respectably 
connected,  a  gig  was  hired  for  the  purpose,  and  he  was  persuaded 
that  it  was  merely  an  excursion  of  pleasure  on  which  he  was 
.going.  In  the  course  of  the  journey,  however,  something  occur- 


INSANITY KNOWLEDGE   ON   THE   SUBJECT    LIMITED.  349 

red  to  arouse  the  suspicions  of  the  lunatic  with  respect  to  his  real 
destination ;  but  he  said  nothing  on  the  subject,  made  no  resist- 
ance, and  seemed  to  enjoy  his  jaunt.  When  they  arrived  at 
Lancaster,  it  was  too  late  in  the  evening  to  proceed  to  the  asylum, 
and  they  took  up  their  quarters  for  the  night  at  an  inn.  Very 
early  in  the  morning  the  lunatic  got  up  and  searched  the  pockets 
of  the  officer,  where  he  found  the  magistrate's  order  for  his  own 
detention,  which,  of  course,  let  him  completely  into  the  secret. 
With  that  cunning  which  madmen  not  unfrequently  display,  he 
made  the  best  of  his  way  to  the  asylum,  saw  one  of  the  keepers,, 
and  told  him  that  he  had  got  a  sad  mad  fellow  down  at  Lancaster, 
whom  he  should  bring  up  in  the  course  of  the  day,  adding:  "He's 
a  very  queer  fellow,  and  he  has  got  very  odd  ways.  For  in- 
stance, I  should  not  wonder  if  he  was  to  say  I  was  the  madman, 
and  that  he  was  bringing  me;  but  you  must  take  good  care  of 
him,  and  not  believe  a  word  that  he  says."  The  keeper,  of 
course,  promised  compliance,  and  the  lunatic  walked  back  to  the 
inn,  where  he  found  the  officer  still  fast  asleep.  He  awoke  him,, 
and  they  sat  down  to  breakfast  together.  "You're  a  lazy  fellow 
to  be  sleeping  all  day;  I  have  had  a  long  walk  this  morning," 
says  the  lunatic.  "Indeed,"  says  the  officer,  "I  should  like  to 
have  a  walk  myself  after  breaklast;  perhaps  you  will  go  with- 
me?"  The  lunatic  assented,  and  after  breakfast  they  sat  out, 
the  officer  leading  the  way  toward  the  lunatic  asylum,  intending 
to  deliver  his  charge;  but  it  never  occurred  to  him  to  examine 
whether  his  order  was  safe.  When  they  got  within  sight  of  the 
asylum  the  lunatic  exclaimed  : — "  What  a  fine  house  that  is !" 
"Yes,"  said  the  officer,  "I  should  like  to  see  the  inside  of  it." 
"  So  should  I,"  observed  the  lunatic.  "  Well,  I  dare  say  they 
will  let  us  through, — I  will  ask,"  was  the  response.  They  went 
to  the  door;  the  officer  rang  the  bell,  and  the  keeper  whom  the 
lunatic  had  previously  seen,  made  his  appearance,  with  two  or 
three  assistants.  The  officer  then  began  to  fumble  in  his  pockets 
for  the  order,  when  the  lunatic  produced  it,  and  gave  to  the- 
keeper,  saying :  "  This  is  the  man  of  whom  I  spoke  to  you  about 


350  MEDICAL    EVIDENCE. 

You  will  take  care  of  him ;  shave  his  head,  and  put  a  strait 
waistcoat  on  him."  The  men  immediately  laid  hands  on  the 
poor  officer,  who  vociferated  loudly  that  the  other  was  the  mad- 
man, and  he  the  officer;  but,  as  this  only  confirmed  the  story 
previously  told  by  the  lunatic,  it  did  not  at  all  tend  to  procure 
his  liberation.  He  was  taken  away,  and  became  so  indignantly 
furious  that  a  straight  waistcoat  was  speedily  put  upon  him,  and 
his  head  was  shaved,  secundum  arlem.  Meanwhile,  the  lunatic 
walked  deliberately  back  to  the  inn,  paid  the  reckoning,  and  set 
out  on  his  journey  homeward.  The  good  people  in  the  country 
were,  of  course,  surprised  on  seeing  the  wrong  man  return ;  they 
were  afraid  that  the  lunatic,  in  a  fit  of  phrensy,  had  murdered  the 
officer,  and  they  asked  him,  with  much  trepidation,  what  he  had 
done  with  Mr.  Stevenson.  "Done  with  him?"  said  the  madman, 
41  why,  I  left  him  at  the  Lancaster  Asylum,  as  mad  as  a  fury !" 
which,  indeed,  was  not  very  far  from  the  truth ;  for  the  wits  of 
the  officer  were  well  nigh  upset  by  his  unexpected  detention  and 
subsequent  treatment. 

Further  inquiry  was  forthwith  made  by  his  neighbors,  and  it 
was  ascertained  that  the  man  was  actually  in  the  asylum.  A 
magistrate's  order  was  produced  for  his  liberation ;  and  he  re- 
turned home  with  a  handkerchief  tied  around  his  head  in  lieu  of 
the  covering  which  nature  had  bestowed  upon  it."1 

There  is  no  standard  of  health  or  disease,  and  so  gradually  do 
they  mingle, — mental  as  well  as  physical, — that  the  line  between 
them  is  an  imaginary  one.  Who  at  the  close  of  day  can  mark 
where  daylight  ends  and  darkness  begins ;  or  who  can  tell  where 
a  child  passes  the  line  of  accountability  ?  "  When  do  virtue  and 
vice  fade  into  each  other  ?  Where  is  the  boundary  of  courage 
and  rashness,  between  prudence  and  cowardice,  between  frugality 
and  avarice,  liberality  and  profligacy?  A  good  action  is  not 
-distinguished  from  a  bad  action  by  marks  so  plain  as  those  which 


1  Manchester,  (England,)  Guardian ;  W.  &  S.  Med.  Juris.  95. 


INSANITY KNOWLEDGE   ON   THE   SUBJECT    LIMITED.  351 

distinguish  a  hexagon  from  a  square  I"1  When  any  or  all  of 
these  things  can  be  done,  then,  and  not  till  then,  may  insanity  be 
defined  and  its  boundaries  established.  "  Who  can  mark  precisely 
the  frontiers,  the  almost  imperceptible  limits  which  separate  insanity 
from  sanity  ?  Who  can  number  the  degrees  by  which  reason 
declines  and  falls  into  annihilation  ?  This  would  be  to  prescribe 
limits  to  that  which  is  illimitable,  to  give  rules  to  (oily,  to  be 
bewildered  with  order,  to  be  lost  with  wisdom."2 

In  cases  of  sudden  or  lingering  death  from  poison,  the  medical 
witness,  if  a  toxicologist,  is  in  a  field  where  the  landmarks  are 
well  defined, — he  has  the  data  to  guide  him  to  a  reasonable  and 
a  correct  conclusion, — he  has  those  tests  to  direct  him,  the  cer- 
tainty of  which  has  been  established  beyond  a  question ;  his  de- 
ductions are  therefore  sound  and  safe.  Courts  of  justice  may 
and  do  act  upon  his  opinions,  in  these  cases,  with  an  assurance 
amounting  almost  to  certainty  that  they  are  true,  exact,  and  not 
theoretical  and  speculative.  So  with  a  great  variety  of  Medico- 
legal  questions.  A  post  mortem  examination  will,  in  many  cases, 
under  the  light  of  science,  bring  out  the  truth,  and  the  court 
gladly  receives  it  from  the  medical  witness.  The  criminal  may 
have  poisoned  his  victim,  and  the  body  of  such  victim  may  have 
crumbled  into  dust,  and  scores  of  years  passed  over  his  grave, 
when  the  chemist  will  sift  those  ashes  and  separate  the  incontro- 
vertible evidence  of  the  guilt  of  the  murderer;  the  court  will 
pronounce  sentence,  and  justice  will  be  vindicated  by  the  scien- 
tific knowledge  of  the  chemist  applied  to  the  question. 

"  How  different,  however,  is  the  position  of  the  witness,  when  his 
mind  is  brought  to  a  consideration  of  the  questions  connected  with 
morbid  mental  phenomena !  In  his  exalted  inquiries,  he  has  no 
fixed  or  certain  tests. — no  infallible  standard, — no  well-defined 
rules, — no  principles  of  exact  science  to  aid  him, — no  beacon  to 
protect  him  from  the  rocks  and  quicksands  which  beset  his 


'  Hon.  B.  Macauley,  M.  P. 

2  M.  d'Agucsseau,  before  the  Parliament  of  Paris. 


352  MEDICAL  EVIDENCE- 

course, — no  chart  to  refer  to  in  times  of  difficulty, — no  compass 
to  guide  him  in  the  hour  of  danger, — no  harbor  of  refuge  into 
which  he  can  run  his  fragile  vessel  when  the  tempest  is  howling 
and  destruction  impending.  As  Medico-legal  witnesses,  the  ob- 
stacles with  which  we  have  to  contend,  are  often  of  a  grave  and 
serious  character.  We  have  to  deal  with  phenomena,  of  the 
essence  or  intimate  nature  of  what  we  know  absolutely ,  positively 
nothing.  It  is  our  duty  to  elucidate  principles  of  belief, — to 
unravel  motions  of  action, — to  explain  erratic  conduct  the  most 
anomalous  and  extraordinary.  We  have  to  trace  the  line  which 
separates  passion, — the  subtle  and  shifting  transformations  of  wild, 
ungovernable,  impetuous  passion, — from  the  excitement  of  mania, 
and  the  morbid  emotions  incident  to  the  minor  forms  of  diseased 
mind ;  to  sketch  the  varying  frontier,  the  nice  and  shadowy  dis- 
tinction, which  separates  lunacy  from  malignity, — madness  from 
brutality ;  to  point  out  where  folly  merges  into  mental  derange- 
ment,— where  responsibility  terminates,  and  irresponsibility  com- 
mences ;  to  distinguish  between  eccentricity  and  insanity, — crime 
and  alienation  of  mind, — vice  and  mental  derangement, — between 
the  delusion  of  the  lunatic,  and  the  false  conclusions, — the  illogical 
deductions, — the  unphilosophical  reasoning  of  men  of  sound  intel- 
lect and  of  rational  understanding, — to  separate  rhapsodies  of  the 
healthy  imagination,  and  the  Arcadian  illusion  of  the  poet,  from 
the  morbid  conceptions  of  the  fancy : 

'Daggers  of  the  mind, — false  creations, — 
Proceeding  from  the  heat-oppressed  brains,' 

*  those  thick-coming  fancies,'  the  products, — the  well-recognized, 
indisputable  symptom  of  a  mind  thrown  off  its  healthy  balance 
by  actual  cerebral  disease. 

There  is  no  possibility  of  our  placing  the  mental  elements  sub- 
mitted to  our  critical  examination  in  a  physiological  or  test-tube ; 
and  we  can  not  avail  ourselves,  in  these  investigations,  of  the  aid 
of  the  microscope ;  there  is  no  mode  by  which  we  can  penetrate 
behind  the  curtain,  or  tear  aside  the  veil  that  divides  the  material 


INSANITY KNOWLEDGE   ON   THE   SUBJECT   LIMITED.  353 

from  the  immaterial, — mind  from  matter;  there  is  no  possibility 
of  our  obtaining  access  to  those  mysterious  chambers  where  the 
spiritual  portion  of  our  nature  is  elaborated ;  we  have  no  gauge, 
no  square  rule,  by  which  we  can  ascertain  in  all  cases,  with  any 
approach  to  chemical  or  mathematical  accuracy,  an  accurate  idea 
of  the  actual  condition  of  the  mind,  when  apparently  under  a 
cloud.  In  the  elucidation  of  these  points,  we  are  in  a  great 
measure  left  to  our  own  unaided  mental  sense, — to  the  uncertain 
guidance  of  our  deceptive  experience,  and  alas!  often  fallible 
judgment."1 

The  absurd  and  contradictory  classifications  or  nosology  adopted 
by  different  authors  upon  the  subject  of  insanity,  add  greatly  to 
the  confusion  and  uncertainty  that  surround  it;  placing  the 
matter  absolutely  beyond  the  reach  of  the  unprofessional.  The 
extent  and  minuteness  to  which  these  classifications  are  carried 
tend  only  to  embarrass  the  courts.  With  them  the  question  is 
not  as  to  what  order,  class  or  division  does  the  malady  belong, 
but  it  is  as  to  the  responsibility  of  the  party.  "Is  he  insane?" 
When  a  court  is  endeavoring  to  ascertain  whether  poison  has 
been  administered,  the  question  is  not,  u  to  what  class  or  order 
does  the  article  administered  belong,"  but  it  is,  u  is  the  article  a 
poison  ?"  So  in  the  investigations  of  insanity ;  the  important 
point  is  not  aS  to  the  species  of  the  disease ;  it  is,  "  whether  the 
party  is  responsible  for  his  acts  ?" 

Every  writer  upon  insanity  has  a  system  of  nomenclature  of  his 
own.  Dr.  Ray  modifies  that  of  Esquirol,  and  makes  it  the  basis 
of  his  classifications  as  follows :  General  divisions, — Idiocy,  Imbe- 
cility, Mania,  Dementia.  Idiocy  is  subdivided  into  two  kinds. 
Imbecility  is  also  subdivided  into  two  kinds.  Mania  is  divided 
into  Intellectual  and  Affective,  and  these  each  into  General  and 
Partial.  Dementia  he  divides  into,  Consecutive  to  Mania,  and 
Senile. 

Of  these  groups  he  says:  "We  shall  often  find  them  running 

»  Dr.  Forbes  Winslow,  Editor  of  the  London  Journal  of  Psychological  Med, 
23 


354  MEDICAL   EVIDENCE. 

into  one  another,  and  be  puzzled  to  assign  to  a  particular  disease 
its  proper  place ;  but  since  such  is  the  order  of  nature,  we  must 
make  the  most  of  the  good  it  presents,  and  remedy  its  evils  in 
the  best  manner  we  can." 

The  classification  of  Flemming  is  still  more  complex  and  diffi- 
cult. His  first  divisions  are  two :  imbecility  and  mental  con- 
fusion. Imbecility  he  subdivides  according  to  origin  and  extent. 
Its  origin  may  be  congenital,  or  arise  from  wounds  on  the  head, 
from  nervous  fevers  or  epilepsy,  or  from  old  age.  As  to  extent, 
it  may  be  limited  imbecility,  and  this  he  divides  up  into  three 
kinds :  weakness  of  memory,  imbecility  of  the  deaf  and  dumb, 
and  imbecility  of  the  blind;  or  there  may  be  general  weakness 
of  mind.  Mental  confusion  he  subdivides  into  disorder  of  tempera- 
ment, disturbance  of  the  understanding,  and  general  depravity. 
Disorder  of  temperament  he  divides  again  into  six  kinds.  The 
symptoms  of  the  first  order  are  irritability,  proneness  to  agitation, 
irascibility,  excessive  disgust,  etc.  The  characteristic  of  the  second 
kind  is,  "  being  an  anomalous  condition  of  particular  states  of 
feeling,  inclination,  and  impulses."  This  is  again  divided  up  into ; 
1.  Cases  of  "sadness,  fear,  dread,  homesickness,"  etc.;  2.  That 
of  "hilarity,  recklessness  of  manner,  raillery,  proneness  to  see 
all  things  in  the  most  vivacious  light;"  3.  "Vacillation  betiveen  the 
two  foregoing  forms.'1'1  The  third  form  of  disorder  of  tempera- 
ment is  characterized  by  "apparent  obtuseness,  dull,  heavy 
reveries  and  abstractions,  indistinct  sensation  of  discomfort,"  etc. 

His  second  subdivision  of  "  mental  unsoundness,"  consists  of 
disturbance  of  understanding.  The  characteristic  here  is  "the 
depravity  of  the  physical  powers,  with  a  controlling  anomalous- 
ness  of  the  intellectual  faculties"  etc.  This  "anomalousness" 
is  run  out  to  a  very  fine  point;  1.  "The  characteristics  being 
unexpected  appearances  and  rapid  subsidence;  2.  Febrile  de- 
lirium; 3.  Drunkenness;  4.  Madness,  caused  by  agit.ition  of 
mind;  5.  Confusion  of  mind  in  sleep;  6.  Somnambulism;  7. 
Chronic  anoesia;  8.  Remittent  anoesia;  9.  Partial  anoesia;  10. 
Hallucinations ;  11.  Eccentricity,  etc.;  12.  General  anoesia,  etc." 


INSANITY KNOWLEDGE   ON   THE   SUBJECT   LIMITED.  355 

The  third  subdivision  of  mental  confusion  contains  ten  or 
a  dozen  other  subdivisions. 

This  classification  Wharton  and  Stille  adopt,  saying  it  "is 
•very  valuable,  both  for  the  delicate  precision  of  its  analysis,  and 
for  the  important  aid  it  affords  to  the  nomenclature  of  forensic 
psychology."1  This  may  all  be  true,  but  it  is  so  "delicate" 
we  fail  to  perceive  any  advantage  that  can  be  derived  from  such 
a  classification.  It  is  certainly  liberal  enough  to  encompass 
within  its  folds  every  son  and  daughter  of  Adam,  sane  or  insane. 
It  tends  only  to  render  the  darkness  of  the  subject  more  visible. 

Then  we  have,  in  the  "moral"  department  of  the  subject,  a 
subdivision  as  extensive  as  are  the  propensities  to  commit  various 
kinds  of  crime,  viz :  homicidal  mania,  kleptomania,  pyromania, 
aidoiomania,  pseudonomania,  oikeiomania,  suicidal  mania,  fana- 
tico-mania,  politico-mania,  etc.  There  indeed  seems  to  be  a 
name  for  every  conceivable  kind  of  mania,  except  that  of  maniacal 
classification,  or  insane  nomenclature. 

The  divison  of  the  subject  by  some  late  writers  into  intellectual, 
emotional,  and  instinctive,  when  well  defined  and  guarded,  which 
is  seldom  the  case,  is  less  objectionable,  because  the  divisions  are 
i'ewer  and  more  natural  than  the  common  system. 

These  divisions  and  subdivisions  being  found  in  all  the  text 
books  on  the  subject  of  insanity,  the  attorney  has  a  right  to 
expect,  that  when  the  medical  witness  comes  upon  the  stand,  if  he 
has  given  to  the  subject  particular  attention,  that  he  will  be  able 
to  assign  each  case  to  its  proper  class,  order  and  species;  and 
when  the  witness  fails  to  do  this,  as  fail  he  always  must,  he  is 
considered  and  looked  upon  as  a  pretender,  not  possessed  of  the 
accessible  knowledge  upon  the  subject.  The  witness  is  mortified, 
the  attorney  is  disgusted,  and  the  court  and  jury  are  left  in  greater 
doubt  upon  the  issue  before  them  than  at  the  outset  of  the  inves- 
tigation. 

NOTE. — The  next  subject  is  insanity.  In  treating  this,  we  are  very  glad  to 
find  so  much  thouglit  and  space  devoted  to  Moral  Insanity,  so-called  to  distinguish 
it  from  the  Intellectual.  We  do  not  quite  agree  with  Dr.  Elwell  hi  regard  to  this 
very  interesting  subject,  but  we  are  quite  ready  to  confess  that  we  have  not  met 
with  any  discussion  of  it  which  has  appeared  more  free  from  prejudice.  Boston 
Med.  &  Surg.  Journal.  ,;  ) 


CHAPTER   XXV. 

THE  POSITION  OF  THE  COURTS  UPON  INSANITY 

IN  view  of  all  the  doubt  and  uncertainty  that  surround  the 
question  of  insanity,  it  seems  singular  that  Dr.  Ray,  Dr.  Oilman, 
and  other  writers  upon  insanity,  should  arraign  the  courts  so 
critically  and  severely,  because  of  an  alleged  delinquency  in  not 
having  adopted  a  certain  and  positive  rule  by  which  an  insane 
man  may  not  be  improperly  punished.  Dr.  Ray  and  Prof.  Gil- 
man  are  particularly  severe  in  their  strictures  upon  the  judiciary. 

Prof  Gilman  says  :  "  Can  it  be  doubted  that  in  all  its  force  and 
in  all  its  apparent  harshness,  the  proposition  is  true,  that  where 
this  right  and  wrong  test  has  controlled  the  administration  of  the 
law,  the  result  has  been  the  perpetration  upon  the  scaffold  of  most 
cruel  murders  ?  Will  any  one  say  that  the  reckless  haste  that 
denied  to  poor  Bellingham  the  few  days  necessary  to  establish  his 
defense,  was  ought  less  than  murderous  ? 

Was  the  partiality  that  sent  Laurence  to  the  gallows,  while 
Ross  Touchet  was  spared,  any  thing  but  murderous  ? 

Above  all,  was  the  hanging  of  Thomas  Bowler  after  he  had 
been,  upon  due  legal  investigation,  declared  insane,  and  as  insane 
deprived  of  the  control  of  his  property,  aught  but  murder  ? 

The  law  must  not  continue  this  already  too  long  catalogue  of 
judicial  murders.  The  law  must  not  keep  in  her  rusty  armory  a 
test  of  sanity  which  every  man  who  has  any  knowledge  of  the 
subject  knows  to  be  vain  and  futile;  the  law  must  not  keep  this 
relic  of  an  unenlightened  age  by  her,  to  be  brought  out,  as  whim, 
or  chance,  or  the  feeling  of  the  hour  may  dictate,  to  slay  those 

(  356) 


THE   POSITION    OF   THE   COURT   UPON   INSANITY.  357 

whom  the  Almighty,  in  his  mysterious, — most  mysterious  provi- 
dence,— has  visited  with  a  disease,  compared  to  which  all  other  and 
mere  physical  diseases  are  but  as  nothing.  Such  beings,  instead 
of  being  dragged  to  the  scaffold  or  thrust  into  the  prison-house, 
should  be  hallowed  by  their  great  misery.  The  heathen  wor- 
shipped the  tree  that  had  been  struck  by  lightning;  let  not 
Christian  men  be  found  less  easily  moved  to  sympathy  with 
human  sorrows."1 

Dr.  Ray  also,  is  unsparing  in  his  charges  against  the  courts, 
while  he  at  the  same  time  admits  the  slow  progress  thus  far  made 
in  mental  aberration.  He  says  :  "  If  the  above  hasty  review  of 
the  judicial  opinions  and  practices  that  have  hitherto  prevailed 
relative  to  insanity,  left  the  impression  that  this  disease  is  as' yet 
but  imperfectly  understood,  as  well  in  the  medical  profession  as 
out  of  it,  an  explanation  of  this  fact  may  perhaps  be  demanded ; 
but  as  it  would  be  hardly  relevant  to  the  present  purpose  to  enter 
largely  into  a  discussion  of  this  point,  nothing  more  will  be  at- 
tempted than  merely  to  indicate  what  seems  to  have  had  the 
principal  share  in  producing  it.  To  explain  the  little  progress, 
comparatively  speaking,  that  has  been  made  by  medical  men  in 
the  knowledge  of  insanity,  it  is  too  much  the  fashion  to  allege 
that  they  have  neglected  the  study  of  mental  philosophy,  or  that 
of  mind  in  the  healthy  state,  which  is  indispensable  to  correct 
notions  on  the  disordered  condition  of  the  mind.  So  far,  how- 
ever, is  the  fact  here  indicated  from  being  true  generally,  that 
one  can  not  hesitate  to  say  that  the  result  in  question  has  been 
owing  to  the  undue  account  that  physicians  have  made  of  the 
popular  philosophy  of  mind,  in  explaining  the  phenomena  of 
insanity,  and  that  they  have  failed,  in  consequence  of  studying 
metaphysics  too  much  instead  of  too  little.  While  it  is  admitted 
that  the  knowledge  of  healthy  structure  and  functions  is  neces- 
sary to  a  thorough  understanding  of  diseased  structure  and 
functions,  there  is  every  reason  to  believe  that  the  converse  of  the 

1  A  Medico-legal  Examination  of  the  case  of  Charles  B.  Huntingtou,  23,  24. 


358  MEDICAL  EVIDENCE. 

proposition  is  equally  true;  neither  can  be  successfully  studied 
independently  of  the  other.  In  the  prosecution  of  psychological 
science,  this  latter  truth  has  been  almost  entirely  disregarded,  and 
therefore  it  is  that  we  see  the  metaphysician  looking  for  his  facts- 
and  his  theories  in  the  healthy  manifestations  of  the  mind,  and 
directed  in  his  course  solely  by  his  own  se'.f-consciousne.ss,  while 
the  student  of  insanity,  after  collecting  his  facts  with  commend- 
able diligence  and  discrimination,  amid  the  disorder  and  irregu- 
larity of  disease,  resorts  to  the  theories  of  the  former,  for  the 
purpose  of  generalizing  his  results,  instead  of  building  upon  them 
a  philosophy  of  his  own.  Metaphysics,  in  its  present  condition, 
is  utterly  incompetent  to  furnish  a  satisfactory  explanation  of  the 
phenomena  of  insanity,  and  a  more  deplorable  waste  of  ingenuity 
can  hardly  be  imagined,  than  is  witnessed  in  the  modern  attempts 
to  reconcile  the  facts  of  the  one  with  the  speculations  of  the  other. 
In  proof  of  the  truth  of  these  assertions,  it  is  enough  barely  to 
mention,  that  the  existence  of  monomania,  as  a  distinct  form  of 
mental  derangement,  was  denied  and  declared  to  be  a  fiction  of 
medical  men,  long  after  it  had  taken  its  place  among  the  estab- 
lished truths  of  science,  because  probably,  it  was  a  condition  of 
mind  not  described  by  metaphysical  writers.  All  this,  however, 
is  in  accordance  with  a  well-known  law  of  the  human  mind,  which 
resists  important  innovations  upon  the  common  modes  of  think- 
ing till  long  after  they  shall  have  been  required  by  the  general 
progress  of  knowledge.  The  dominant  philosophy  has  prevailed 
so  long  and  so  extensively,  and  has  become  so  firmly  rooted  in 
men's  minds,  that  they  who  refuse  to  take  it  on  trust,  and  who 
seriously  inquire  into  its  foundations,  and  after  finding  them  too 
narrow  and  imperfect,  are  bold  enough  to  endeavor  to  remedy  its 
defects  by  laying  foundations  of  their  own,  are  stigmatized  as 
visionaries,  and  overwhelmed  with  ridicule  and  censure.  The 
only  metaphysical  system  of  modern  times  which  professes  to  be 
founded  on  the  observation  of  nature,  and  which  really  does 
explain  the  phenomena  of  insanity  with  a  clearness  and  verisimili- 
tude that  strongly  corroborate  its  proofs,  was  so  far  from  being 


"THE  POSITION  OF  THE  COURTS  ON  INSANITY.  359 

joyfully  received,  that  it  is  still  confined  to  a  sect,  and  is  regarded 
by  the  world  at  large  as  one  of  those  strange  vagaries  in  which 
the  human  mind  has  sometimes  loved  to  indulge.  So  true  it 
is,  that  in  theory,  all  mankind  are  agreed  in  encouraging  and 
applauding  the  humblest  attempt  to  enlarge  the  sphere  of  our 
ideas,  while  in  practice,  it  often  seems  as  if  they  were  no  less 
agreed  to  crush  them  by  means  of  every  weapon  that  wit,  argu- 
ment and  calumny  can  furnish.  In  the  course  of  this  work  the 
reader  will  have  frequent  occasion  to  see  how  the  popular  miscon- 
ceptions,— which  are  too  much  adopted  by  professional  men, — 
of  the  nature  of  various  forms  of  mental  derangement,  have  been 
produced  and  fostered  by  the  current  metaphysical  doctrines,  and 
thus  may  have  some  means  of  judging  for  himself,  how  far  the 
imperfect  notions  of  insanity,  that  are  prevalent,  may  be  attri- 
buted to  the  cause  above  assigned."1 

The  learned  author  would  have  less  of  metaphysics  and  more 
of  pathology, — the  former  failing  to  solve  the  great  problem  of 
insanity,  he  adopts  the  latter, — attributing  insanity,  as  he  does, 
wholly  to  disease  of  the  brain,  as  if  the  scalpel  could  reveal  the 
hidden  sources  and  springs  of  insane  actions.  We  fear  neither 
morbid  anatomy  nor  an  analysis  of  the  blood, — where  Dr.  Rush 
supposed  insanity  to  be  located, — will  throw  but  a  very  dim  light 
upon  the  subject.  Let  anatomists  and  physiologists  labor  as  long 
and  as  hard  as  Dr.  Ray  admits  metaphysicians  have  done,  then, 
and  not  till  then,  should  they  denounce  the  study  of  metaphysics 
sis  fruitless,  and  as  laying  the  ground  for  fake  theories  and  con- 
clusions as  to  the  understanding  and  the  treatment,  medically  and 
legally,  of  insanity. 

Dr.  Ray,  by  whose  own  writings  we  have  shown  the  want  of 
definite  knowledge  upon  the  question  of  insanity,  commences  his 
book  with  a  criticism  upon  the  courts,  as  severe  as  it  is  unreason- 
able ;  and  from  the  assurance  and  confidence  with  which  he  starts 
out,  we  naturally  expect  that  before  he  closes  his  labors  he  will 

1  Kay's  Medical  Jurisprudence  of  Insanity,  p.  CO. 


SCO  MEDICAL   EVIDENCE. 

Bet  the  courts  right,  by  defining  the  boundaries  of  insanity  accur- 
ately, and  point  out  its  indices  so  clearly  that  they  may  not  err 
in  future.  This,  however,  he  does  not  do.  When  he  comes  to  the 
troublesome  points, — those  upon  which  rest  all  the  dispute  and 
doubt,  —  he  deals  in  generalities,  leaving  the  matter  really  where 
he  found  it, — a  terra  incognita, 

Of  the  judicial  aspect  and  condition  of  the  question,  he  says: 
"  Few,  probably,  whose  attention  has  not  been  particularly  directed 
to  the  subject,  are  aware  how  lar  the  condition  of  the  law  relative 
to  insanity  is  behind  the  present  state  of  our  knowledge  concern- 
ing that  disease.  While  so  much  has  been  done,  within  a  com- 
paratively short  period,  to  promote  the  comfort  of  the  insane,  and 
so  much  improvement  has  been  effected  in  the  methods  of  treating 
their  disorder,  as  to  have  deprived  it  of  half  its  terrors,  it  is  both 
a  curious  and  a  melancholy  fact,  th  it  so  little  has  been  accom- 
plished toward  regulating  their  personal  and  social  rights,  by  more 
correct  and  enlightened  principles  of  jurisprudence.  While 
nations  are  vying  with  one  another  in  the  excellence  of  their 
public  institutions  for  the  accommodation  of  this  unfortunate  class 
of  our  fellow  men,  and  physicans  are  every  year  publishing  some 
instances  of  an  unexampled  proportion  of  cures,  we  remain  perfectly 
satisfied  with  the  wisdom  of  our  predecessors  in  every  thing  rela- 
tive to  their  legal  relations."  And  yet,  in  the  same  paragraph 
there  is  an  admission  that  "insanity  itself  is  an  affection  so 
obscure  and  perplexing,"  that  an  ample  field  is  required  for  its 
illustration  and  discus^on.  After  stating  "  the  only  difficulty" — 
and  it  looks  like  a  most  radical  one,  <  mbodying  the  whole  ques- 
tion,— "  or  diversity  of  opinion,  consists  in  determining  who  are 
really  insane,  in  the  meaning  of  the  law," — or  he  might  add  with 
more  propriety,  in  the  meaning  of  medical  men, — "  which  has  been 
content  with  merely  laying  down  some  general  principles,  and 
leaving  their  application  to  the  discretion  of  the  judicial  authori- 
ties." At  this  very  spot,  has  always  been  the  great  stumbling- 
block  with  the  courts  as  well  as  with  every  body  else,  and  from 
whence  arises  all  the  difficulty,  "of  determining  who  are  really 


"THE   POSITION   OF   THE   COURTS    ON    INSANITY.  3G1 

insane.'1''  The  reason  of  this  difference  of  opinion  and  difficulty,  is 
accounted  for  by  Dr.  Ray  as  follows :  "  Inasmuch  as  the  greatest 
possible  variety  is  presented  by  the  mental  phenomena  in  a  state 
of  health,  it  is  obvious,  that  profound  study  and  extensive  obser- 
vation of  the  moral  and  intellectual  nature  of  man  can  alone 
prevent  us  from  sometimes  confounding  them  with  the  effects  of 
disease.  It  would  seem,  therefore,  an  almost  self-evident  propo- 
sition, that  a  certain  knowledge  of  the  mind  in  its  healthy  state," 
— that  is,  each  individual  mind, — "  is  an  essential  preliminary  to 
the  attainment  of  correct  ideas  concerning  its  diseased  manifes- 
tations." And  yet  he  blames  and  denounces  the  courts  for  not 
having  general,  fixed,  and  liberal  rules,  on  a  subject  where  each 
case  is  unlike  all  others. 

Dr.  Ray  also  complains  that  while  in  criminal  cases  the  courts 
are  too  severe,  in  civil  ones  they  are  too  lenient,  or  too  ready  to 
admit  the  insanity  of  the  party.  lie  says:  "we  can  not  but 
think  that  the  ends  of  justice  would  be  better  obtained  if  no 
general  rule  at  all  were  adopted,  and  every  case  decided  on  its 
own  merits.  Where  the  insanity  of  one  of  the  parties  is  per- 
fectly well  known  to  the  other,  or  might  have  been  so  by  the 
exercise  of  ordinary  sagacity,  a  contract  between  them,  except 
for  the  necessaries  of  life,  or  comforts  and  luxuries  suitable  to  his 
wealth  or  situation,  should  obviously  be  held  invalid,  because  the 
insane  party  is  deprived  by  the  act  of  Providence  of  his  natural 
share  of  discernment  and  foresight  It  often  happens,  however, 
that  a  person's  insanity  is  not  generally  known  and  is  not  veiy 
apparent,  and  in  such  cases,  if  it  can  be  proved  that  the  contract 
is  a  fair  one  and  reasonable  on  the  face  of  it,  and  was  entered 
into  in  perfect  honesty  and  good  faith,  he  certainly  should  not 
be  permitted  to  stultify  himself  in  order  to  escape  its  performance. 
Neither  does  his  death  or  interdiction  so  change  the  case,  as  to 
render  it  proper  for  his  heirs  or  guardians  to  do  that  which  he 
could  not  do  for  himself.  Much  as  the  law  is  bound  to  protect 
the  interests  of  the  insane,  it  is  no  less  required  to  protect  those 
who  deal  with  them,  unacquainted  with  their  mental  condition. 


362  MEDICAL   EVIDENCE. 

It  as  often  happens,  that  the  same  party  suffers  from  the  avoid- 
ance of  the  contract,  as  that  the  insane  or  his  heirs  do  from  its 
validity ;  and  nothing  can  be  more  clearly  unjust  than  the  appli- 
cation of  a  maxim  or  general  rule  that  favors  only  the  interests 
of  the  unsound  party."1  In  the  well  marked  cases  of  insanity,  in 
both  Civil  and  Criminal  Jurisprudence,  "where  the  insanity  of 
one  of  the  party  is  perfectly  well  known  to  the  other,  or  might 
have  been  so,  by  the  exercise  of  ordinary  sagacity,"  there  is  no 
great  difficulty  in  determining  the  rights  and  responsibilities  of 
all  parties  concerned ;  but  in  criminal  as  in  civil  cases,  the  diffi- 
culty arises  where  the  symptoms  are  indistinct, — not  well  marked, 
"  for  it  often  happens,  that  a  person's  insanity  is  not  generally 
known  and  is  not  very  apparent"  according  to  Dr.  Ray  himself. 

In  discussing  this  question,  one  of  the  errors  of  Dr.  Ray  con- 
sists in  taking  the  rulings  of  a  particular  court,  in  an  individual 
case,  and  considering  it  a  general  rule,  applicable  to  every  case, — 
or  so  applied  by  the  courts  in  all  cases.  He  does  not  seem  to  be 
aware  that  judges  always  confine  themselves  as  closely  as  possible 
to  the  very  points  made  before  them  in  the  particular  case,  and 
that  the  reports  generally  give  the  case  in  brief,  leaving  all  but 
the  very  points  at  issue  out,  or  untouched.  Mr.  Bishop,  an  able 
writer  upon  Criminal  law,  says :  "It  is  not  easy  to  distinguish  the 
legal  principles  which  are  immutable,  from  those  views  of  facts 
of  insanity  which  are  open  to  inquiry  in  each  particular  cnse.  It 
should  also  be  remembered  that  the  various  phases  and  manifes- 
tations are  next  to  infinite  in  number.  No  reason  indeed 
appears,  why  they  may  not  be  even  more  numerous,  and  certainly 
more  difficult  to  be  understood,  than  the  diverse  qualities  and 
phenomena  of  sound  minds."2 

While  there  is  so  much  acknowledged  difficulty  and  doubt 
surrounding  this  whole  subject  among  psychologists  and  medic.il 
men  generally,  in  whose  especial  keeping  the  question  is  supposed 


1  Ray  on  Insanity,  p.  11. 

2  1  Bishop's  Criminal  Law,  254. 


THE   POSITION   OF   THE   COURTS    UPON    INSANITY.  365 

to  rest,  can  it  be  reasonably  expected  that  the  courts  can  have 
well-established  and  settled  rules  upon  the  subject,  by  which  to 
determine  correctly  questions  of  insanity, — that  they  will  take 
a  higher  position  than  the  medical  profession  itself?  Is  it  just, 
that  judges  should  be  censured  for  not  knowing  where,  in  every 
case,  to  draw  the  line  of  accountability,  if  those  who  make  the 
study  a  specialty  are  unable  to  determine  it  ? 

When  psychologists  and  pathologists  will  establish  certain 
rules  by  which  insanity  and  its  extent  may  be  surely  known, 
the  courts  will  not  be  slow  in  applying  those  rules  to  the  relief 
of  every  one  laboring  under  the  malady,  from  the  punishment 
of  crime.  Judge  CAPRON,  in  his  charge  to  the  jury  in  the 
Huntington  case,  truly  said:  "You,  doubtless,  need  not  be  told, 
gentlemen,  that  the  law  holds  no  person  bereft  of  reason,  respon- 
sible for  his  acts.  Deprived  of  mind,  man  is  but  an  automatic 
machine ;  and  human  courts  in  holding  him,  when  thus  afflicted^ 
acquit  of  guilt,  do  but  humbly  and  obscurely  imitate  the  perfect 
justice  of  Deity.  Insanity,  or  mental  alienation,  has  from  time 
immemorial  received  the  attention  of  the  civil  and  criminal 
tribunals  of  all  enlightened  governments;  able  professors  in  all 
the  learned  professions,  and  other  profound  scholars  have  studied 
and  examined  the  structure  and  functions  of  the  human  system, 
the  laws  and  operations  of  mind,  the  relations  of  each  to  the 
other  and  their  mutual  influence  as  a  united  organism,  and  have 
deduced  results  and  demonstrated  their  correctness  by  practical 
illustration  and  logical  deductions  from  established  data ;  these 
results  the  courts  have  never  failed  to  sanction  as  soon  as  their 
learned  authors  had  agreed  among  themselves  on  the  subject,  and 
practical  experience  had  attested  their  certainty.  Acting  in  this 
spirit,  the  theories  of  the  schools  on  the  subject  of  insanity,  as 
approved  by  the  majority  of  the  learned  in  that  department  of 
science,  have  been  from  time  to  time  recognized  by  the  courts, 
and  placed  among  the  rules  of  evidence  and  law."  No  special 
class  of  cases,  perhaps,  has  occupied  so  much  time  in  the  courts- 
as  that  of  insanity,  and  no  class  of  cases  has  been  heard  and 


364  MEDICAL    EVIDENCE. 

examined  with  more  patience,  anxiety,  stern  and  earnest  endeavor 
to  arrive  at  truth  by  judges,  than  when  this  plea  has  been  made 
by  the  defense :  so  anxious  have  the  courts  been,  that  when  any 
doubt  existed  as  to  whether  the  conviction  was  right,  a  new  trial 
has  been  granted  or  the  old  one  continued.  The  case  of  Abner 
Rogers  was  thus  continued.  The  courts  are  ever  merciful.  Lord 
KENYON,  in  Hadfield's  case,  said :  "  Insanity  must  be  made  out  to 
the  satisfaction  of  a  moral  man,  meeting  the  case  with  fortitude 
of  mind,  and  knowing  the  anxious  duty  he  has  to  discharge ;  yet 
if  the  scales  hang  tremulously,  throw  in  a  certain  proportion  of 
mercy  in  favor  of  the  prisoner?*1 

PARKER,  C,  J.,  of  New  Hampshire,  in  one  of  his  charges  to  the 
grand  jury,  says :  "  The  public  papers,  in  giving  reports  of  trials, 
often  say,  'the  defense  was,  as  usual,  insanity,'  or  make  use  of  some 
other  expression,  indicating  that  this  species  of  defense  is  resorted 
to,  in  desperation,  for  the  purpose  of  aiding  in  the  escape  of  crimi- 
nals from  justice.  Such  opinions  are  propagated  in  many  instances 
by  those  whose  feelings  are  too  much  enlisted,  or  whose  ignorance 
respecting  the  subject  is  too  great,  to  permit  them  to  form  a 
dispassionate  and  intelligent  judgment,  and  they  have  a  very 
pernicious  tendency,  inasmuch  as  they  excite  the  public  mind, 
and  the  unfortunate  individual  who  is  really  entitled  to  the 
benefit  of  such  defense,  is  thereby  sometimes  deprived  of  a  fair 
and  impartial  trial.  They  tend  to  m:ike  the  defense  of  insanity 
odious,  to  create  an  impression  against  its  truth  in  the  outset, 
and  thus  to  bias  the  mind  of  the  jury  against  the  prisoner,  and 
to  induce  them  to  give  little  heed  to  the  evidence,  in  the  very 
cases,  where  the  greatest  care  and  attention,  and  impartiality  are 
necessary  for  the  development  of  truth,  and  the  attainment  of 
justice. 

We  all  concur  in  the  doctrine  of  the  law,  that  for  acts  com- 
mitted during  a  period  of  insanity,  and  induced  by  it,  the  party 
is  not  responsible ;  that  when  the  criminal  mind  is  wanting,  when, 

1  27  Howell,  St.  Tr.  1354. 


*THE   POSITION    OF   THE   COURTS    ON    INSANITY.  365- 

instead  of  being  guided  by  the  reason  which  God  bestowed,  the 
individual  is  excited  and  led  on  by  insane  fury  and  impulse,  or 
by  the  aberrations  of  a  wandering  intellect,  or  a  morbid  and 
diseased  imagination,  or  a  false  and  distorted  vision  and  percep- 
tion of  things,  punishment  should  not  ibllow  the  act  as  for  an 
offense  committed;  that  when  the  faculty  of  distinguishing 
between  right  and  wrong  is  wanting,  the  individual  ought  not  to 
be  held  as  a  moral  and  accountable  agent.  As  well,  nay,  much 
better,  might  we,  as  was  formerly  done  in  France,  institute  prose- 
cutions against  the  brute  creation  for  offences  committed  by  them, 
and  hang  a  beast  for  homicide,  than  to  prosecute  and  condemn 
a  human  being  who  is  deprived  of  his  reason ;  for  in  such  case 
there  is  no  hope  of  a  restoration  to  a  right  mind,  and  a  reinstating, 
of  a  fellow  citizen,  who  has  been  once  lost  to  the  community,  in. 
the  rights  and  affections  of  humanity.  But  if  we  imbibe  the 
idea  that  instances  of  insanity  are  very  rare, — that  derangement 
exists  only  when  it  manifests  itself  by  incoherent  language  and 
unrestrained  fury, — that  the  defense,  when  offered,  is  probably 
the  last  resort  of  an  untiring  advocate,  who,  convinced  that  no 
real  defense  can  avail,  will  not  hesitate  to  palm  off  a  pretended 
derangement  to  procure  the  escape  of  his  client  from  merited 
punishment, — if  in  this  way  we  steel  our  hearts  against  all 
sympathy,  and  our  minds  against  all  conviction,  it  is  of  little  avail 
that  we  agree  to  the  abstract  proposition,  that  insanity  does  in 
fact  furnish  a  sufficient  defense  against  an  accusation  for  a  crime. 

There  are  undoubtedly  instances  where  this  defense  is  attempt- 
ed from  the  mere  conviction  that  nothing  else  will  avail, — cases, 
where  the  advocate  forgets  the  high  duty  to  which  he  is  called, 
and  excites  a  prejudice  against  the  case  of  others,  by  prompting 
to  procure  the  escape  of  a  criminal  under  this  pretenc*  out  such 
cases  are  truly  rare  and  usually  unsuccessful." 

Thus  the  courts  talk  and  act  upon  the  subject  of    asanity. 

Notwithstanding  this  relation  of  the  courts  to  asanity,  and 
their  practice  under  this  relation,  they  have  been  constantly 
charged,  both  by  writers  on  Medical  Jurisprudence  and  by 


366  MEDICAL   EVIDENCE. 

•counsel  who  defend  on  this  ground,  with  being  prejudiced  against 
the  plea  of  insanity,  even  when  well  taken,  and  that  such  defense 
is  heard  with  impatience.  It  is  doubtful  whether  a  single  work 
on  Medical  Jurisprudence  can  be  found  where  this  complaint 
is  not  reiterated  against  the  courts;  and  it  forms  the  staple  in 
the  plea  of  almost  every  attorney  who  may  have  charge  of  a 
defense  on  the  ground  of  insanity.  This  charge  has  been  made 
so  often,  no  one  seems  disposed  to  dispute  it ;  yet  the  complaint 
is  unjust  and  groundless. 


NOTE  1. — Insanity  is  a  question  of  fact  to  be  proved  by  the  party  alleging  it.  Anderson  v. 
The  State,  43  Conn,,  514.  Brooks  v.  Barnett,  6  Pick.,  94.  State  v.  Johnson,  40  Conn.,  136. 
Peaslee  z>.  Robins,  3  Mete.,  164.  Oldest  law  on  lunacy  is  17th  Edw.  2ch.,  1321.  ''The  king 
shall  take  care  of  the  fools." 

Nora  2.— Partial  insanity  may  exist  and  the  party  be  held  responsible.  Banks  v.  Good- 
fellow,  L.  R.  5,  Q.  IJ.  549.  Hovey  v.  Hobson,  53  Me..  255.  Dennett  v,  Dennett,  44  N.  H.,  5"1. 
Odell  v.  Buck,  21  Wend.,  143.  People  v.  McNamara,  Steuben  Co.,  N.  Y.,  O.  &  T.,  December 
Term,  1877. 

NOTE  3. — Incapacity  to  choose  between  two  courses  of  conduct,  or  without  ability  to 
execute  choice,  the  person  is  not  responsible.  Stevens  v.  State,  31  Ind..  455.  State  v.  Felter, 
25  Iowa,  67.  People  *.  Mont,  13  Abb.  Pr.  (N.  S.)  322. 

NOTE  4. — The  law  does  not  recognize  latent  insanity,  (Roberts  v.  The  People,  19  Mich., 
402,)  but  does  lucid  intervals.  Boyd  v.  Eby,  8  Watts,  66. 

NOTE  5. — No  presumption  of  insanity  arises  from  the  act  of  suicide.  1  Dow  s  H.  L.  Cas., 
187.  Terry  v.  Life  Ins.  Co.  2  Bigelow,  31. 

NOTE  6. — Courts  must  construe  a  statute  strictly  on  the  question  of  insanity.  Matter  of 
Valentine,  N.Y.  Court  of  Appeals,  Jan.,  1878,  3  Abbott's  N.  C.  2-5. 

NOTE  7.— Spiritualism  not  necessarily  a  legal  delusion.  See  Red.  Am.  Leadidg  Cases  on 
"Wills,  384. 

NOTE  8.— To  make  a  successful  defeuce  on  the  ground  of  insanity  for  a  criminal  act,  the 
criminal's  insanity  must  be  established  positively,  a  doubt  of  the  person's  sanity  is  not  suffi- 
cient. Sellick-s  case,  1  City  Hall,  R.  C.  185.  People  v.  Robinson,  1  Park,  Cr.  649  ;  2  El.  235. 

NJTE  9. — Drunkenness  may  be  a  defence  when  intent  is  an  sssential  element  in  the 
crime,  and  yet  guilty  of  great  wrong.  Reg.  v.  Thomas,  7  C.  &  [P.,  817.  R.  v.  Pearson.  2 
Lewin,  134.  Reg.  v.  Cruse,  8  C.  &  P.,  541. 

NOTE  10. — "  1st.  If  one  be  partially  insane,  it  does  not  follow  that  he  Is  exempt  from 
responsibility  for  criminal  acts. 

"2d.  If  one  partially  insane  commits  an  offence,  the  offence— the  act  with  which  he  Is 
charged— be  not  the  direct  offspring  of  the  insanity,  he  is  responsible  to  the  law.  If  the  pris- 
oner's delusion  relate  to  some  ether  subject— is  not  connected  with  the  act  for  which  he  is  on 
trial— it  does  not  shield  him  from  responsibility.  In  snch  case  partial  insanity  will  furnish  no 
excuse  for  crime. 

"3d.  In  case  of  partial  insanity  or  delusion,  one  is  not  exempt  from  responsibility  for 
his  acts,  unless  the  facts  which  he  imagines  or  believes  to  exist  ^but  which  are  entirely  fictiti- 
ous), would,  if  true,  justify  him  in  the  commission  of  the  deed  for  which  he  is  on  trial. 

•'  4th.  If  one  knows  right  from  wrong  with  reference  to  the  act  for  which  he  is  on  trial, 
he  is  responsible  for  his  conduce."  Hon.  Henry  L.  Clinton,  in  the  Buckhout  case,  N.  Y. 


CHAPTER  XXYI. 

INSANITY— THE  MEDICAL  WITNESS— THE  COURTS. 

WHILE,  as  we  have  seen,  the  most  candid  and  able  medical 
men  of  both  continents  admit,  that  comparatively  little  is  known 
as  to  the  essential  elements  of  insanity ;  it  is  not  surprising  that 
the  courts  should  be  troubled  in  determining  who  are  non  compos 
mentis,  and  that  their  history  on  this  point  should  present  some 
conflict, — often  only  apparent, — of  decisions,  and  that  writers 
upon  Criminal  law  should  complain  that  the  medical  profession 
have  not  given  to  the  courts  sufficient  data  upon  which  they  can 
act  intelligently,  or  from  which  can  be  deduced  general  principles 
of  law. 

The  distinguished  author  and  physician,  Prof.  D.  Meredith 
Reese,  of  New  York,  frankly  acknowledges  that  the  courts 
and  counsel  defer  to  and  depend  upon  the  medical  profession 
for  authority  upon  insanity.  He  says:  "The  bench  and  bar 
have  everywhere  deferred  to  medical  testimony,  in  all  questions 
of  forensic  medicine ;  and  especially  in  the  jurisprudence  of 
insanity.  No  man  in  any  civilized  country  can  be  confined  in 
an  asylum,  abridged  of  his  liberty,  deprived  of  the  control  of 
his  property,  or  released  from  his  responsibilities  to  Civil  and 
Criminal  law,  without  the  judgment  or  testimony  of  medical  men, 
as  to  the  fact  of  his  being  non  compos  mentis,  or  of  '  unsound 
mind,'  in  the  language  of  the  law.  The  courts  and  juries  every- 
where rely  upon  physicians  for  their  guidance  in  all  such  ques- 
tions. And  we  owe  it  to  this  deference  everywhere  extended  to 
our  profession  in  these  important  cases,  to  see  to  it,  that  the 
administration  of  justice  is  not  embarrassed  by  the  incompetency 
of  our  representatives,  for  lack  of  adequate  instruction  being 

(367) 


3G8  MEDICAL   EVIDENCE. 

included  in  the  training  provided  in  our  medical  colleges  and 
schools. 

But  how  have  we  responded  to  the  just  demand  of  the  legal 
profession  in  this  regard?  Dr.  Pliny  Earle  justly  complains  that 
this  '  subject  of  insanity  does  not  enter  into  the  programme  of 
lectures  in  any  of  our  leading  medical  schools.  It  is  safe,  per- 
haps, to  assert  that  not  one  in  ten  of  the  graduates  of  those 
schools  have  ever  read  a  treatise  upon  mental  disorders.'  Indeed, 
the  department  of  Medical  Jurisprudence  itself  is  either  wholly 
ignored  in  ihe  curriculum  of  our  universities  and  colleges,  or 
merely  appended  to  some  other  chair  or  chairs,  by  ivay  of  formal 
recognition,  and  this  for  the  most  part  stat  nominis  umbra. 

In  Germany,  this  subject  attracts  greater  attention  than  in  any 
other  country.  As  early  as  1811,  the  University  of  Leipsic 
founded  the  first  professorship  of  Psychiatric,  which  was  long 
filled  by  the  late  Dr.  Heinroth.  Soon  after,  the  establishment 
of  clinical  teaching  in  the  asylums  was  sanctioned  by  government,, 
and  at  the  instance  of  the  several  faculties,  attempts  have  been 
made  to  include  such  clinics  among  the  requisites  for  graduation, 
on  the  rational  ground  that  if  physicians  are  to  be  intrusted  with 
the  treatment  of  insanity,  they  should  be  obliged  to  study  the 
disease  under  capable  and  experienced  teachers.  It  need  scarcely 
be  added  that,  with  such  opportunities  in  the  German  asylums,  a 
multitude  of  students  are  found  improving  them,  so  that  in  most 
of  the  institutions  for  the  insane  in  that  country,  those  physicians 
who  have  been  thus  clinically  trained  are  employed  as  superin- 
tendents. It  is  full  time  that  this  subject  should  receive  greater 
attention  in  the  United  States,  as  it  doubtless  will  do  under  the 
enlightened  guidance  of  the  American  Association  of  Superin- 
tendents, and  the  American  Journal  of  Insanity.  The  demands 
of  our  civil  and  criminal  courts  all  over  the  land,  for  competent 
and  intelligent  medical  testimony,  must  be  met  by  raising  tip  an 
army  of  experts  in  every  department  of  Medical  Jurisprudence, 
and  especially  on  this  important  topic  of  mental  aberration. 
Else  the  ignorance  of  too  many  physicians,  displayed  before  the 


INSANITY THE   MEDICAL   WITNESS THE   COURTS.  369 

courts  and  juries,  may  lead  to  the  undervaluation,  if  not  the 
rejection  of  medical  evidence  in  all  such  cases."1 

There  should,  therefore,  be  no  general  charge  brought  against 
the  courts  for  want  of  well-settled  rules  on  this  subject,  until  those 
learned  men  who  have  spent  so  much  time  in  the  investigation  of 
the  disease,  shall  have  agreed  upon  something  themselves,  and 
demonstrated  its  truth  to  the  world ;  a  result  they  admit,  as  yet 
unattained.  When  this  is  accomplished,  the  courts  will  not  be 
slow  in  putting  into  practical  operation  any  well-settled  tests  that 
may  afford  a  better  chance  of  determining  more  satisfactorily  than 
at  present,  who  is  sane  and  who  is  insane.  Mr.  Bishop,  a  late 
philosophical  and  able  writer  upon  Criminal  law,  says:  "The  law 
of  insanity,  which  seems  simple,  is  in  many  respects  difficult 
and  embarrassing,  in  the  attempt  more  minutely  to  unfold  it,  or 
apply  it  to  cases  arising  in  practice.  In  the  first  place,  it  is 
apparent  that  there  are  numerous  shades  or  degrees  of  sanity 
and  insanity,  blending  with  one  another,  and  separated  by  no 
very  distinct  lines.  And  since  the  law  regards  not  small  things, 
it  follows,  that  not  every  little  cloud,  floating  over  an  otherwise 
illumined  understanding,  will  exempt  from  criminal  responsibility ; 
nor,  on  the  other  hand,  will  every  glimmering  of  reason,  over  the 
dark  waters  of  a  troubled  mind,  subject  the  unfortunate  being  to  the 
heavy  pains  provided  for  willful  wrong  doing."  He  suggests  also 
another  difficulty  :  "  Now  the  Common  law, — the  atmosphere  of 
our  political  and  social  existence ;  elastic  in  form,  but  unchanging 
in  essence;  to  the  dull  mind  ever  varying,  and  to  the  clear  one 
ever  the  same, — is  often,  from  the  causes  stated,  so  imperfectly 
developed  in  these  adjudications,  that  it  is  not  easy  to  distinguish 
the  legal  principles,  which  are  immutable,  from  those  views  of  the 
facts  of  insanity,  which  are  open  to  inquiry  in  each  particular  case. 
It  should  also  be  remembered,  that  the  various  phases  and  mani- 
festations of  insanity  are  next  to  infinite  in  number.  No  reason, 

1  Report  on  Moral  Insanity  in  its  Relations  to  Medical  Jurisprudence.    Extracted 
from  the  Transactions  of  the  American  Medical  Association,  p.  13 — 15. 
24 


370  MEDICAL   EVIDENCE. 

indeed  appears,  why  they  may  not  be  even  more  numerous,  and 
certainly  more  difficult  to  be  understood,  than  the  diverse  quali- 
ties and  phenomena  of  sound  minds ;  and  our  assurance  may  well 
be  humbled  when  we  reflect,  that  what  is  called  the  learned  world, 
much  more  the  mass  of  human  kind,  is  still  groping  darkly  upon 
the  borders  of  intellectual  and  moral  science.  And  in  consider- 
ing the  decisions  of  the  judges,  we  must,  in  each  case,  take  into 
our  view  both  the  errors  of  facts  respecting  the  disease  insanity, 
and  the  malformation  of  idiocy,  under  which  they  labored ;  and 
also  the  peculiar  circumstances  of  the  case  itself,  as  it  appeared 
in  the  evidence."  Again :  "  Beside  the  intrinsic  difficulty  of  the 
subject,  there  is  for  this  fact,  another  principal  cause,  already 
alluded  to,  namely :  the  peculiar  mingling  of  knowledge  from  two 
distinct  professions,  the  medical  and  legal,  which  these  investiga- 
tions require,  -An  elementary  writer,  who  should  bring  to  the 
work  transcendent  skill  in  both  departments,  would  do  an  im- 
mense service  by  a  thorough  elucidation  of  the  entire  question. 
Our  medical  brethren  fail  to  give  us  the  instruction  we  need, 
because  they  do  not  understand  our  wants,  and  we,  in  turn,  do 
not  succeed  in  presenting  the  legal  view  in  a  manner  to  be  rightly 
apprehended  by  them.  Dr.  Beck  seems  to  have  been  fully  con- 
scious of  this  difficulty.  Dr.  Ray,  on  the  other  hand,  in  his 
excellent  and  useful  volume,  has  undertaken  to  treat  of  the  legal 
branch,  with  the  medical ;  and  he  has  most  soundly  cudgeled  the 
judges,  on  account,  chiefly,  though  perhaps  not  wholly,  of  his 
own  failure  to  understand  them.  When  they,  for  example,  have 
laid  down  a  doctrine  in  reference  to  the  particular  facts  under 
consideration,  he  has  taken  the  doctrine  in  a  general  sense;  and 
then,  by  representing  how  far  from  just  it  is  when  applied  to 
other  circumstances,  not  under  consideration,  has  shown  up  the 
judges,  whom  he  has  not  intended  to  treat  unfairly,  in  a  very 
unfavorable  light.  Thus  he  has  made  various  adjudications  of 
the  courts,  on  this  subject,  appear  to  be  bundles  of  inconsis- 
tencies and  absurdities ;  and  the  law,  in  many  respects,  as  prac- 
tically expounded,  any  thing  but  just  and  reasonable.  And  we 


INSANITY THE   MEDICAL   WITNESS THE   COURTS.  371 

need  not  wonder  at  this,  when  we  reflect  how  difficult  it  is  for 
men  in  any  one  profession  to  comprehend  what  belongs  to  another, 
with  which  they  are  entirely  uni'amiliar."1 

Dr.  D.  Meredith  Reese  says :  "  The  profession  of  law,  in  view 
of  our  reciprocal  relations  and  mutual  responsibilities,  are  entitled 
to  an  intelligible  explanation,  if  not  a  specific  definition,  as  well 
as  some  reliable  test,  on  which  they  and  we  can  rely,  as  charac- 
terizing those  forms  and  degrees  of  insanity  which  are  to  be 
recognized  as  exempting  from  responsibility  to  the  laws  of  the  land, 
especially  in  criminal  cases.  It  is  only  in  the  absence  of  any 
medical  definition  or  test,  our  profession  having  failed  to  furnish 
either,  that  the  bench  has  been  appealed  to  by  the  bar  for  such 
definition  or  test.  Hence,  the  recorded  decisions  of  the  courts  in 
every  country  have,  with  singular  uniformity,  concurred  in  the 
'  knowledge  of  right  and  wrong,'  or  the  '  knowledge  that  the  act 
was  contrary  to  the  laws  of  God  and  nature,'  at  the  time  of  its 
commission,  as  the  definition  and  test  of  sanity  for  the  guidance 
of  juries.  But  many  in  our  profession  have  been  ever  remon- 
strating against  these  legal  decisions  as  defective  and  erroneous, 
and  alleging  that  such  '  knowledge '  is  often  possessed  by  the 
insane,  who  are  unquestionably  such.  Still,  however,  we  declare 
ourselves  wholly  unprepared  to  lay  down  any  other  or  better  rule 
of  judgment ;  nor  is  there  any  other  definition  or  test,  upon  which 
the  medical  profession  have  ever  agreed.  Our  highest  authorities 
:seem  to  content  themselves  with  denying  that  any  definition  is 
practicable,  or  any  test  conclusive,  although  every  medical  sciolist 
and  tyro  expects  his  ipse  dixit  to  be  infallible,  and  the  bench,  the 
bar,  and  the  jury  are  all  profoundly  to  cower  before  a  medical 
certificate  of  insanity,  and  the  dictum  of  a  professional  man  that 
the  solemn  judgment  of  the  fifteen  judges  of  Great  Britain  and 
the  House  of  Lords,  as  to  irresponsible  insanity,  is  'absurd  and 
nonsensical,'  must  become  the  law  of  the  land." 

It  is  not  easy  to  over-estimate  or  to  exaggerate  the  importance 

1 1  Bishop's  Criminal  Law,  254. 


372  MEDICAL   EVIDENCE. 

of  the  subject ; — the  great  difficulties  that  surround  it, — its  bear- 
ing upon  personal  liberty  and  life, — the  rights  of  property  and 
the  safety  of  society, — all  enhance  thv1  necessity  of  approaching 
insanity  with  a  true  appreciation  of  the  strength  of  the  ramparts 
behind  which  it  is  intrenched. 

What  position  then  can  be  conceived  fraught  with  more  diffi- 
culties than  that  of  the  medical  witness  and  courts  of  justice,  on 
this  vexata  qucestio.  The  court  depends  mostly  if  not  altogether 
upon  the  medical  witness,  who  must  sustain  the  responsibility. 
The  following  paragraph  is  from  Dr.  Reese : 

"  There  is  assuredly  no  more  important  or  responsible  position 
in  which  any  medical  man  can  be  placed,  than  when  called  to  be 
examined  before  a  legal  tribunal  in  a  case  of  this  character.  Nor 
is  there  any  duty  so  difficult  to  perform,  without  special  prepara- 
tion, by  a  cautious  and  diligent  investigation  of  the  individual 
case,  and  a  full  knowledge  of  its  histor}7,  its  etiology,  its  symp- 
tomatology, and,  in  short,  its  pathological  phenomena,  with  the 
periods  and  order  of  their  development,  together  with  all  the 
morbid  perversions,  intellectual,  moral,  or  instinctive,  which  he- 
can  observe,  or  otherwise  authenticate.  Nor  should  an  opinion 
ever  be  given  by  a  medical  man,  in  any  doubtful  case,  on  a 
cursory  or  brief  examination,  nor  without  such  special  preparation 
and  repeated  interviews  as  to  protect  him  from  his  double  liability 
to  imposition  and  error.  The  insanity  may  be.  and  often  is  feigned 
so  skillfully  as  to  deceive  the  very  elect ;  while,  where  it  exists, 
it  is  sometimes  so  adroitly  concealed  by  ingenuity  and  artifices 
which  insanity  itself  can  alone  invent,  and  which  none  but  pro- 
fessional experts  can  readily  detect,  and  these  only  after  oft-re- 
peated and  continuous  vigilance  and  skill.  Hence,  we  can  not 
be  too  strongly  impressed  with  the  complicated  difficulties  and 
fearful  responsibilities  involved  in  such  professional  positions." 

To  the  elementary  difficulties  already  noticed,  which  the  medi- 
cal witness  carries  with  him  to  the  stmd,  are  to  be  added  the 
ignorance  and  prejudice  of  relatives ;  who  are  either  over-sensi- 
tive,— not  willing  that  their  friend  should  be  pronounced  insane, — 


INSANITY THE-  MEDICAL   WITNESS THE   COURTS.  373 

or,  on  the  other  hand,  desirous  that  he  should  be  declared  imbecile 
or  insane,  to  effect  some  selfish  purpose.  The  court  looks  on, 
and  hears  with  jealousy  and  doubt,  perhaps,  what  is  said,  thinking 
that  the  witness  may  not  be  able  to  enlighten  it  upon  a  sub- 
ject, where  theory  and  false  philosophy  are  so  apt  to  sway  the 
mind  of  a  witness, — even  of  good  intention,  and  who  rea'.ly  desires 
riot  to  mislead  the  court,  but  to  come  to  correct  conclusions; 
not,  however,  fully  appreciating  the  insurmountable  obstacles  in 
his  way, — the  various  aberrations, — reflections  of  the  glass  through 
which  he  attempts  to  examine  the  subject, — and  that  he  may  be 
mistaken,  or  become  lost  in  the  mazes  of  uncertainty  that  surround 
the  subject.  That  the  courts  have  at  times  been  illiberal  toward 
the  witness,  who,  anxious  to  discharge  a  solemn  and  thankless  duty, 
appearing  in  answer  to  a  subpoena  without  inclination  or  reward,  is 
not  to  be  denied  or  justified.  Lord  Campbell,  Lord  Chief-Justice 
of  England,  in  the  Bainbrigge  case,  alluding  to  the  evidence  of 
three  physicians  who  had  recorded  their  opinion  in  favor  of  the 
insanity  of  the  testator,  observed,  after  they  had  retired  Irom  the 
witness  box:  "The  medical  men  who  have  just  been  examined 
need  not  be  detained  any  longer  ?"  Mr.  Keeting. — "  Certainly 
not,  my  lord ;"  and  upon  Sir  A.  Cockborn  assenting,  Lord  Camp- 
bell remarked :  "  Let  it  be  fully  understood,  on  both  sides,  that 
the  medical  men  may  take  their  departure ;"  and  addressing  the 
three  physicians,  his  lordship  continued :  "  You  may  go  hume  to 
your  patients,  and  I  wish  you  may  be  more  usefully  employed 
than  you  have  been  here !"  Again  to  the  jury  he  said,  when 
dwelling  upon  the  medical  testimony :  "  We  have  had,  during 
this  trial,  the  evidence  of  three  medical  witnesses,  and  I  think 
they  might  as  well  have  stayed  at  home,  and  have  attended  to 
their  patients."  This  occurred  in  one  of  those  great  will  cases, 
which  the  English  courts  are  called  upon  occasionally  to  deter- 
mine. Mr.  Bainbrigge  was  immensely  wealthy ;  which  wealth  was 
disposed  of  by  will.  Upon  the  issue  of  the  case  depended  the 
vast  property.  The  trial  occupied  more  than  a  week ;  some  of 
the  most  illustrious  advocates  and  equity  lawyers  of  England  were 


374  MEDICAL  EVIDENCE. 

engaged  in  conducting  the  suit.  The  only  question  was  as  to  the 
sanity  or  insanity  of  the  testator.  The  evidence,  as  usual,  was 
very  conflicting;  the  assumed  facts  upon  which  the  alleged  in- 
sanity was  based  were  conflicting.  The  medical  faculty  in  the 
locality  where  the  case  was  tried,  could  throw  no  light  upon  the 
subject,  and  it  was  therefore  deemed  necessary  to  subpoena  three 
of  the  best  London  physicians,  who,  for  experience,  science  and 
sagacity,  were  supposed  to  be  unexcelled.  They  heard  the  testi- 
mony, and  as  experts,  stated  to  the  best  of  their  judgment,  what 
was  the  condition  of  the  testator's  mind, — whether  or  not  he, 
when  the  will  was  executed,  was  of  a  healthy,  sound  and  dispos- 
ing intellect.  The  whole  weight,  therefore,  of  this  great  case, 
covering  millions,  rested  upon  the  shoulders  of  these  three  men ! 
And  because  they  were  not  competent  to  make  the  matter  clear, 
and  solve  the  problem,  they  were,  as  we  have  seen,  driven  out  of 
court  amid  contemptuous  jeers.  Owing  to  some  informality,  the 
verdict  of  the  jury,  which  was  against  the  will,  on  the  ground  of 
insanity,  was  set  aside,  and  the  case  was  to  be  tried  a  second 
time,  and  two  of  these  same  medical  witnesses  were  subpoenaed  to 
appear  and  give  evidence  again  before  the  same  court.  In  this 
way  the  medical  witness  has  been  driven  out  of  court  for  not 
unravelling  to  the  satisfaction  of  the  judge,  what  no  human  being,, 
however  learned,  is  able  to  make  clear ;  and  then  dragged  back 
again  to  be  put  to  the  rack,  for  not  revealing  a  secret,  so  tightly 
locked  up  amid  the  wonderful  arcana  of  mind. 

A  Lord  High  Chancellor  of  England,  on  one  occasion,  while 
he  expressed  no  disrespect  for  the  medical  witnesses,  said:  "His 
experience  taught  him  there  were  very  few  cases  of  insanity  in 
which  any  good  came  from  the  examination  of  medic.il  men. 
Their  evidence  sometimes  adorned  a  case,  and  gave  rise  to  very 
agreeable  and  interesting  scientific  discussions ;  but  after  all  it 
had  little  or  no  weight  with  the  jury."  This  extract  shows  how 
medical  evidence,  on  the  question  of  insanity,  is  looked  upon  by 
the  best  minds  of  the  legal  profession.  They  should  not  blame 
the  medical  witness  for  not  doing  what  is  impossible,  unless  the 


"INSANITY — THE  MEDICAL  WITNESS — THE  COURTS.         375 

witness  arrogates  to  himself  a  knowledge  of  the  subject  If  he 
pretends  to  explain  and  mark  out  all  the  boundaries  that  define 
and  separate  the  limits  of  responsible  intelligence  and  irresponsi- 
bility, where  the  lives  of  a  community  or  the  fate  of  property 
depend  upon  these  limits  and  bounds,  he  must  do  it  clearly,  or 
be  disgraced  in  the  eyes  of  intelligent  men.  The  error  is  most 
frequently  in  the  witness  himself  pretending  to  know  what 
is  not  known,  either  by  himself  or  others.  He  should  be  able 
and  willing  to  tell  without  a  blush  for  his  profession,  or  without 
confusion,  what,  and  how  much  is  still  unknown  and  unsettled  in 
this  department  of  medical  inquiry.  Then  he  will  be  under- 
stood, maintain  his  own  self  respect,  and  secure  that  of  the  court 
and  bar. 

Under  the  unsettled  and  confused  state  of  this  question  gener- 
ally, it  is  not  to  be  expected  that  any  definition  of  insanity  can 
be  given  that  will  be  satisfactory.  Every  writer  attempts  it,  and 
in  his  turn  fails.  Taylor  says:  "It  is  impossible,  in  Medical 
Jurisprudence,  to  give  any  consistent  definition  of  insanity.  A 
medical  witness  who  ventures  upon  a  definition  will  generally  find 
himself  involved  in  numerous  inconsistencies.  No  wosds  can 
possibly  comprise  the  variable  characters  which  this  malady  is 
liable  to  assume.  Some  medical  practitioners  have  attempted 
to  draw  a  distinction  between  insanity  and  unsoundness  of 
mind  I"1 

Another  writer  on  this  subject  says :  "  The  term  insanity,  like 
many  other  words  which  we  are  in  the  constant  habit  of  using, 
seems  to  have  lost  its  original  meaning,  and  to  be  now  generally 
taken  in  too  restricted  a  sense,  implying  those  deviations  from 
the  natural  and  healthy  condition  of  mind,  which  consist  in 
excessive  and  disproportioned  activity  of  all  or  of  some  of  its 
faculties,  and  being  rarely  if  ever  applied  to  those  states  of  mind 
characterized  by  deficient  energy  of  action,  whether  original  or 
acquired.  The  term  insanity,  therefore,  does  not  include  all 

1  Medical  Jurisprudence,  p.  615. 


376  MEDICAL   EVIDENCE. 

possible  deviations  from  the  sound  and  healthy  condition  of  the 
mind,  and  is  therefore  inapplicable  to  the  present  purpose."1 

Dr.  Geo.  B.  Wood  says :  "  Insanity  is  a  general  term,  includ- 
ing all  departments  of  the  intellectual  and  moral  functions,  not 
forming  some  other  disease,  nor  an  ordinary  physiological  result 
of  the  time  of  life.  The  delirium  of  fever,  the  hallucinations  of 
hysteria,  the  temporary  cerebral  irregularities  from  excessive  pain, 
or  functional  disturbance  in  various  parts  of  the  body,  the  irrational 
confidence  and  hopes  of  phthises,  the  equally  irrational  depression 
of  dyspepsia,  the  stupor  of  apoplexy,  and  the  imbecility  of  old 
age,  can  scarcely  be  considered  as  falling  within  the  term.  Yet 
it  must  be  acknowledged  that  the  definition  is  imperfect  and  per- 
haps necessarily  so,  as  our  ideas  of  insanity  are  somewh.it  indefi- 
nite, and  when  precision  is  wanting  in  our  conception,  it  can  not 
be  given  in  words."3 

Dr.  Wood's  list  of  the  symptoms  of  insanity,  includes  every 
possible  phase  and  condition  of  both  disease  and  health.  He 
says :  "  The  question  of  the  existence  of  insanity  in  a  particular 
case  is  often  difficult  of  solution ;  and  sometimes  it  is  impossible 
to  come  to  a  positive  conclusion,  because  no  precise  line  can  be 
drawn  between  sanity  and  insanity,  the  two  conditions  running 
into  e.ich  other  by  insensible  gradations."3 

Again :  "  It  should  be  remembered,  in  our  inquiries  as  to  the 
existence  of  insanity,  that  patients  often  have  lucid  intervals,  in 
which  it  is  difficult  or  impossible  to  detect  any  trace  of  the 
disease ;  and  a  decision  therefore  should  be  avoided,  until  they 
have  been  seen  on  different  occasions ;  and  sometimes  it  is  neces- 
sary for  the  physician,  in  forming  his  judgment,  to  rely  upon  the 
testimony  of  others.  In  relation  to  moral  insanity  and  insane 
impulse,  a  just  decision  is  often  still  more  difficult  than  in  cases 
of  monomania,  with  one  steady  illusion.  Men  so  often  act 


1  Guy's  Medical  Jurisprudence,  p.  258. 
»  2  Wood's  Practice  of  Medicine,  732-33. 
» Ibid,  757. 


*  INSANITY THE   MEDICAL    WITNESS THE   COURTS.  377 

insanely  under  the  influence  of  misguided  opinion  and  excited 
passion,  that  the  physician  should  be  very  cautious  in  coming  to 
a  conclusion.  When  the  tendencies  of  the  irregular  feeling  or 
impulse  are  materially  to  injure  the  person  of  others,  or  of  the 
aflected  individual  himself,  the  judgment  should,  perhaps,  incline 
to  insanity,  so  that  the  proper  guard  may  be  exercised ;  if  the 
tendency  be  quite  innocent,  it  may,  without  harm,  pass  fur  mere 
eccentricity  of  feeling.  The  question  as  to  the  origin  of  the 
peculiar  state  of  feeling,  and  the  circumstance  of  its  first  appear- 
ance, should,  in  this  form  of  insanity,  as  in  monomania,  be  allowed 
some  weight."1 

Dr.  Oilman  says :  The  first  difficulty  the  medical  witness 
encounters,  is  the  definition  of  insanity.  "  The  prudent  course  is 
to  decline,  saying  to  the  court  that  it  is  impossible  to  comprehend 
all  the  phenomena  of  insanity  within  the  limits  of  a  definition. 
Ifj  however,  you  desire  to  give  one,  be  sure  that  it  is  the  result 
of  careful  and  patient  thought.  If  you  are  quite  sure  that  you 
can  recollect  a  definition  which  satisfied  your  mind,  in  your  study, 
you  may  give  it;  but  rely  upon  it,  if  you  try  to  extemporize  a 
definition,  it  will  be  a  bad  one.  The  best  I  have  been  able  to 
make  is  this :  "  Insanity  is  a  disease  of  the  brain,  by  which  the 
freedom  of  the  will  is  impaired."2 


1  2  Wood's  Practice  of  Medicine,  753. 

*  The  Relations  of  the  Medical  to  the  Legal  Profession,  p.  20. 


NOTE. — It  was  never  held  by  any  court,  either  in  England  or  this  country, 
that  if  a  person  had  a  monomania  or  delusion  in  respect  to  one  subject,  he  was 
exempt  from  criminal  responsibility  for  all  his  acts.  It  never  was  held  that  par- 
tial insanity,  monomania,  or  delusion,  relieved  a  person  from  criminal  responsi- 
bility in  respect  to  acts  not  connected  with  such  partial  insanity,  monomania  or 
delusion.  As  already  shown  in  cases  of  partial  insanity,  there  can  be  no  exempt- 
ion from  criminal  responsibility  unless  the  act  is  the  direct  offspring— the  im- 
mediate result — of  the  delusion,  and  not  then  unless  the  facts  supposed  to  exist, 
would,  if  actually  true,  justify  the  act  in  question.  Hon.  Benry  L.  Clinton,  in 
the  Buckhout  case,  N.  Y. 


CHAPTER   XXVII. 

INSANITY  IN  ITS  LEGAL  RELATIONS. 

.WE  proceed  to  the  consideration  of  the  principal  points  in- 
volved in  the  legal  investigation  of  insanity,  with  the  fact  before 
us,  that  the  men  of  greatest  eminence  at  the  bar  and  in  medicine, 
unite  in  deploring  the  want  of  more  definite  knowledge  on  the 
subject;  and  consequently  the  absence  of  well-defined  and  settled 
first  principles  to  regulate  the  judgment  of  the  courts,  and  the 
conduct  of  counsel  and  witnesses.  Neither  court  or  counsel  can 
feel  the  want  of  settled  principles  more  than  the  medical  witness. 
Complexity,  contradiction,  difficulty,  doubt  and  obscurity  are  the 
rules,  if  they  may  be  so  called,  that  guide  him  !  These  alone  are 
certain,  and  present  in  every  case. 

All  attempts  to  deduce  general  principles  in  regard  to  Medico- 
legal  evidence  on  this  subject  of  insanity,  therefore,  should  be 
made  with  humility  and  distrust. 

There  can  be  no  settled  rules  for  the  courts  or  for  the  witness 
in  these  cases,  from  the  very  nature  of  the  subject.  We  have  seen 
that  medical  men  have  no  definition  or  rules  that  fix  and  confine 
insanity,  any  more  closely  than  the  normal  mind  is  defined  or 
bounded ;  and  on  the  court  side  of  this  question  the  twelve  judges 
say  to  the  House  of  Lords :  "  They  deem  it  at  once  impracticable, 
and  at  the  same  time  dangerous  to  the  administration  of  justice^ 
if  it  were  practicable,  to  attempt  to  make  minute  application  of 
the  principles  involved  in  the  answers  given  by  them  to  their 
lordship's  questions."  In  their  answer  they,  therefore,  narrowly 
and  closely  confine  themselves  to  the  abstract  question  proposed. 
Mr.  J.  Maule  delivered  a  separate  opinion  on  this  occasion,  and 

(378) 


INSANITY    IN    ITS   LEGAL   RELATIONS.  379 

goes  even  further  in  declining  to  lay  down  any  precise  rule  which 
should  serve  as  an  unbending  precedent.  In  the  debate  which 
called  out  the  expression  from  the  judges,  Lord  Lyndhurst,  the 
Lord  Chancellor  who  had  tried  Oflbrd,  (5  Car.  &  Payne,)  expressed 
himself  with  great  doubts  as  to  the  propriety  of  undertaking  to 
make  a  universal  rule  or  declaration  of  law  in  the  matter. 

But  when  is  Medical  Evidence  needed  upon  this  question,  and 
what  has  been  the  course  adopted  by  the  courts,  in  regard  to  it  ? 

The  occasions  upon  which  Medical  Evidence  is  required  in 
courts  of  law  on  questions  of  insanity,  are  : 

1.  When  the  plea  of  insanity  is  urged  in  extenuation  of  crime. 

2.  When  attempts  are  made  to  invalidate  the  legal  operation 
of  testamentary  disposition  of  property,  on  the  ground  of  mental 
incompetency. 

3.  When  legal  proceedings  are  instituted  to  invalidate  a  mar- 
riage contract,  on  the  plea  of  insanity  and  imbecility. 

4.  Cases  where  medical  men  are  called  upon  to  certify  to  the 
existence  of  insanity,  justifying  an  interference  with  the  person 
of  the  lunatic,  and  depriving  him  of  his  free  agency,  either  for 
the  purpose  of  placing  him  under  treatment,  or  protecting  him 
from  the  commission  of  acts  of  violence  to  himself  or  others. 

In  looking  over  the  records  of  the  courts  for  the  last  two 
hundred  years,  it  would  be  singular  if  we  did  not  find  much  con- 
fusion and  vacillation  on  the  subject  of  insanity. 

At  an  early  day,  so  great  was  the  difficulty  felt  to  be,  in  deter- 
mining where  the  line  should  be  drawn,  it  was  held  that  no  degree 
of  insanity  should  be  an  excuse  for  crime,  but  absolute  disposes- 
sion  of  the  free  and  natural  agency  of  the  mind.  It  was  no 
defense  that  the  party  was  partly  insane,  or  insane  on  some  sub- 
jects. This  was  the  rule  laid  down  by  Lord  Hale.  He  says : 
"  It  is  the  condition  of  many,  especially  melancholy  persons,  who, 
for  the  most  part,  discover  their  defect  in  excessive  fears  and 
griefs,  and  yet  are  not  wholly  destitute  of  the  use  of  reason ;  but 
this  partial  insanity  seems  not  to  excuse  them  in  the  committal 
of  any  capital  offense.  Doubtless,  most  persons  who  kill 


380  MEDICAL   EVIDENCE. 

themselves  are  under  a  partial  degree  of  insanity  when  they  com- 
mit these  offenses,  and  it  is  very  difficult  to  define  the  invisible 
line  that  divides  perfect  from  partial  insanity ;  but  it  must  rest 
upon  circumstances,  to  be  duly  weighed  by  the  judge  and  jury, 
lest,  on  the  one  hand,  there  be  an  inhumanity  toward  the  defects 
of  human  nature;  or,  on  the  other,  too  great  an  indulgence  shown 
•to  great  crimes."1 

Collinson  s:iys :  "There  must  be  an  absolute  dispossession  of  the 
free  and  natural  agency  of  the  human  mind.  The  prisoner  must 
have  been  incapable  of  distinguishing  between  good  and  evil,  and 
-of  comprehending  the  nature  of  what  he  was  doing."2  Shelford, 
from  a  number  of  adjudged  cases  deduces  the  following  rule : 
"  If  a  person,  liable  to  partial  insanity,  which  only  relates  to  par- 
ticular subjects  or  notions,  upon  which  he  talks  and  acts  like  a 
madman,  still  has  as  much  reason  as  enables  him  to  distinguish 
between  right  and  wrong,  he  will  be  liable  to  punishment  which 
the  law  attaches  to  his  crime."  He  cites  Lord  Ferrer's  case,  10 
Howell's  State  Trials,  947;  Arnold's  case,  10  Howell's  State 
Trials,  7G4;  Parker's  case;  1  Collinson  on  Lunacy,  477  ;  Belling- 
ham's  case,  1  Collinson,  635;  Offord's  case,  5  Car.  &  Payne, 
1G8  ;  Bowler's  case,  1  Collinson,  673. 

Sir  John  Mitford  said  on  Hadfield's  trial :  "  Because  there  is  a 
natural  impression  on  the  mind  of  man,  of  the  distinclion  between 
good  and  evil,  which  never  entirely  loses  hold  of  the  mind,  whilst 
the  mind  has  any  capacity  whatever  to  exert  itself,  nothing  but 
total  and  absolute  debility  depiives  the  mind  of  any  man  of  that. 
If  conscious  of  the  act,  as  the  result  of  design  and  contrivance, 
and  of  the  consequence  of  the  act,  is  there  not  a  moral  sense, 
which  indicates  criminal  responsibility?"3 

In  1723,  Mr.  Justice  Tracy,  proceeding  upon  the  common 
-error,  that  the  derangement  must  be  total  in  its  character, 


1 1  Hale's  P.  C.  29,  30. 

2  Collinson  on  Insanity,  473. 

s  27  Howell's  State  Trials,  1290. 


INSANITY    IN   ITS   LEGAL    RELATIONS.  381- 

manifesting  itself  in  wild,  ungovernable,  and  incongruous  actions, 
or  in  stupid  imbecility,  and  that  a  person  can  not  appear  like 
other  men  in  most  or  many  respects,  ordinarily,  and  yet  be  the 
subject  of  insanity  on  some  particular  matters,  said:  "A  man 
to  be  insane,  must  have  no  more  reason  than  an  infant,  a  brute- 
or  a  wild  beast."  Another  judge  proposed  a  knowledge  of  the 
multiplication  table  as  a  test  of  legal  sanity. 

But  when  it  began  to  be  suspected  that  an  individual  might  be 
insane  on  one  particular  subject, — that  he  might  be  a  monoma- 
niac,— subject  to  a  particular  delusion, — and  yet  appear  perfectly 
natural  and  regular  in  regard  to  every  other, — both  medical  and 
legal  men  seemed  to  feel  the  necessity  of  a  different  rule  than 
that  requiring  absolute  dementia. 

To  the  great  Erskine, — a  lawyer, — more  than  to  any  other 
man,  perhaps,  is  the  world  indebted  for  having  emancipated  the 
courts  from  the  old  stern  rule,  and  having  incorporated  into  our 
laws  the  principle  that  a  person  might  be  insane  or  deluded  on 
one  subject  and  apparently  sound  and  regular, — having  a  knowl- 
edge of  right  and  wrong, — on  all  others.  This  doctrine  he  laid 
down  in  the  celebrated  Hadfield  case,  where  he  was  for  the  defense. 
He  thus  first  applied  successfully  in  law,  that  which  physicians 
had  claimed  for  some  time  before. 

Erskine's  main  propositions  were,  that  "  the  most  difficult  cases, 
are  where  reason  is  not  wholly  driven  from  her  seat,  but  distrac- 
tion sits  down  upon  it  along  with  her,  holds  her  trembling  upon 
it  and  frightens  her  from  her  propriety.  Such  patients  are  victims 
to  delusions  of  the  most  alarming  description,  which  overpower 
the  faculties  and  usurp  so  firmly  the  place  of  realities  as  not  to 
be  dislodged  and  shaken  by  the  organs  of  perception  and  sense. 
Delusion,  therefore,  when  there  is  no  phrensy  or  raving  madness, 
is  the  true  character  of  insanity,  and  when  it  can  not  be  predi- 
cated of  a  man  standing  for  life  or  death  for  crime,  he  ought  not 
to  be  acquitted."  And  again :  "  To  deliver  a  lunatic  from  re- 
sponsibility to  criminal  justice,  above  all,  in  a  case  of  atrocity, 
the  relation  between  the  disease  and  the  act  should  be  apparent; 


382  MEDICAL  EVIDENCE. 

the  delusion  and  act  must  be  connected.  I  can  not  allow  the 
protection  of  insanity  to  a  man  who  exhibits  only  violent  passions 
and  malignant  resentments  acting  upon  real  circumstances,  who 
is  impelled  to  evil  from  no  morbid  delusion,  but  who  proceeds 
upon  the  ordinary  perceptions  of  the  mind." 

It  will  be  remembered,  that  Had  field  was  tried  for  shooting  at 
King  George  the  Third,  in  Drury  Lane  Theatre,  in  the  year 
1800.  The  effort  was  ineffectual;  but  as  the  attempt  was  itself 
high  treason  by  the  law  of  England,  he  was  tried  for  his  life  before 
the  Court  of  King's  Bench.  At  his  own  request,  Mr.  Erskine, 
the  ablest  advocate  at  the  English  bar,  defended  him,  being 
assigned  by  the  court.  In  selecting  Mr.  Erskine,  Hadfield 
showed  great  judgment,  and  seemed  to  appreciate  his  danger. 
The  defense  made  by  Erskine,  was  almost  superhuman.  He 
threw  nrjre  light  upon  the  dark  subject  of  insanity,  than  all  that 
had  been  said  or  written  on  the  subject  before.  Hadfield  having 
been  a  soldier  in  the  army,  had  received  a  dangerous  wound  on 
the  head  which  made  him  insane  for  a  time,  and  he  was  discharged 
from  the  service.  Subsequently  he  was  subject  to  a  partial  de- 
rangement every  year,  during  the  spring  and  summer  months, 
which  made  him  imagine  that  he  held  intercourse  with  the  Deity, 
.and  was  himself  a  Saviour  like  JESUS  CHRIST.  His  actions  also 
during  these  periods  were  frequently  the  most  extravagant  and 
irrational.  He  would  threaten  to  kill  one  of  his  children,  of 
whom  he  was  ordinarily  very  fond,  saying  he  was  commanded 
to  do  so  by  the  voice  of  God;  had  his  wife  not  prevented  it, 
he  would  have  probably,  at  one  time,  executed  his  intention. 
Between  this  attempt  upon  the  life  of  his  child  and  his  attempt 
upon  the  life  of  the  king,  he  frequently  talked  in  an  incoherent 
and  blasphemous  manner.  He  was  under  a  delusion,  that  like 
the  Saviour  he  must  fulfill  his  mission  by  giving  up  his  life,  but 
that  he  was  not  permitted  to  take  it  himself,  so  he  must  perform 
some  act  which  would  subject  him  by  law  to  capital  punishment. 
So  he  procured  a  pistol,  and  having  carefully  loaded  it,  he  re- 
paired to  the  theatre,  and  took  a  station  where  the  king  would 


INSANITY   IN   ITS    LEGAL   RELATIONS.  383 

be  in  full  view  as  he  entered.  Having  waited  nearly  an  hour  for 
the  king,  when  he  came,  he  rose  with  the  rest  of  the  audience  on 
the  king's  entrance,  and  taking  deliberate  aim,  fired,  but  with  no 
effect,  the  slugs  going  above  and  below  the  king's  person.  He 
was  immediately  arrested,  making  no  attempt  to  escape ;  he  said 
he  Jcneiv  perfectly  well  that  his  life  was  forfeited;  that  he  was 
tired  of  it,  and  regretted  nothing  but  the  fate  of  his  wife ;  that 
he  did  not  intend  any  thing  against  the  life  of  the  king;  he 
knew  the  attempt  only  would  answer  his  purpose.  He  showed 
no  appearance  of  derangement, — spoke  with  calmness.  Many 
witnesses  testified  that  in  his  whole  conduct  in  the  theatre,  they 
witnessed  no  mark  of  mental  aberration. 

In  many  respects  this  case  is  very  contradictory  in  its  charac- 
ter. The  plea  of  insanity  succeeded ;  and  yet  there  was  much 
appearance  of  cool  calculation,  and  slow,  patient  deliberation; 
reasoning  on  the  whole  transaction  correctly  from  beginning  to 
end; — evincing  a  clear  understanding  of  the  crime  and  the 
punishment, — even  a  minute  knowledge, — for  he  said  he  knew 
the  attempt  alone  was  sufficient  to  bring  upon  him  the  penalty  of 
death.  He  appreciated  fully  the  destitute  condition  of  his  family, 
and  the  necessity  of  an  able  advocate.  He  was,  nevertheless, 
undoubtedly  insane  upon  one  point,  to  wit :  that  he  was  a  Saviour 
like  CHRIST;  and  what  he  did  was  to  save  mankind,  even  to  the 
taking  of  the  life  of  the  king,  and  was  right.  He  wished  to  kill 
the  king,  and  yet  said  he  did  not  intend  any  thing  against  his 
life.  Altogether,  the  case  of  Hadfield  is  an  important  one,  and 
worthy  of  study. 

To  illustrate  how  an  individual  might  be  insane  on  one  subject 
and  reason  correctly  on  all  others,  so  far  as  observation  could 
determine,  Erskine  related  the  following  circumstance.  "I  well 
remember,"  says  he,  "  examining,  for  the  greater  part  of  a  day, 
in  this  very  place,  (the  Court  of  King's  Bench,)  an  unfortunate 
gentleman,  who  had  indicted  a  most  affectionate  brother,  together 
with  the  keeper  of  a  mad-house  at  Hoxton,  for  having  imprisoned 
him  as  a  lunatic,  whilst,  according  to  his  evidence,  he  was  in  his 


MEDICAL   EVIDENCE. 

perfect  senses.  I  was,  unfortunately,  not  instructed  in  what  his 
lunacy  consisted,  although  my  instructions  left  me  no  doubt  of 
the  fact ;  but  not  having  a  clue,  he  completely  foiled  me  in  every 
attempt  to  expose  his  infirmity.  You  may  believe  that  I  left  no 
means  unemployed  which  long  experience  dictated;  but  without 
the  smallest  effect.  The  day  was  wasted,  and  the  prosecutor,  by 
the  most  aflecting  history  of  unmerited  suffering,  appeared  to  the 
judge  and  jury,  and  to  a  humane  English  audience,  as  the  victim 
of  the  most  wanton  and  barbarous  oppression ;  at  last  Dr.  Sims 
came,  who  had  been  prevented  by  business,  from  an  earlier  atten- 
dance ;  from  him  I  soon  learned  that  the  very  man  whom  I  had 
been  above  an  hour  ineffectually  examining,  and  with  every  pos- 
sible effort  which  counsel  are  in  the  habit  of  exerting,  believed 
himself  to  be  the  Lord  and  Saviour  of  mankind  ;  not  merely  at 
the  time  of  his  confinement,  which  was  alone  necessary  for  my 
defense,  but  during  the  whole  time  he  had  been  triumphing  over 
every  attempt  to  surprise  him  in  the  concealment  of  his  disease. 
I  then  affected  to  lament  the  indecency  of  my  ignorant  examin- 
ation, when  he  expressed  his  forgiveness,  and  said  with  the  utmost 
gravity  and  emphasis,  in  the  face  of  the  court :  *  I  am  the  CHRIST  ;' 
and  so  the  cause  ended." 

Another  illustration  of  partial  insanity  was  given  by  Mr.  Ers- 
kine  on  the  same  occasion,  from  Lord  Mansfield.  "A  man  by 
the  name  of  Wood,"  said  Lord  Mansfield,  "  had  indicted  Dr. 
Monroe  for  keeping  him  as  a  prisoner,  when  he  was  sane.  He 
underwent  the  most  severe  examination,  by  the  defendant's  coun- 
sel, without  exposing  his  complaint;  but  Dr.  Battye,  having 
come  upon  the  bench  by  me,  and  having  advised  me  to  ask  him 
what  had  become  of  the  princess  whom  he  had  corresponded  with 
in  cherry-juice,  he  showed  in  a  moment  what  he  was.  He 
answered,  that  there  was  nothing  at  all  in  that,  because,  having 
been,  (as  every  body  knew,)  imprisoned  in  a  high  tower,  and 
being  debarred  the  use  of  ink,  he  had  no  other  means  of  correspon- 
dence but  by  writing  his  letters  in  cherry-juice,  and  throwing  them 
into  the  river  which  surrounded  the  tower,  where  the  princess 


INSANITY   IN   ITS    LEGAL   RELATIONS.  385 

would  receive  them  in  a  boat.  There  existed,  of  course,  no 
tower,  no  imprisonment,  no  writing  in  cherry-juice,  no  river,  no 
boat,  but  the  whole  the  inveterate  phantom  of  a  morbid  imagi- 
nation." "I  immediately,"  continued  Lord  Mansfield,  "directed 
Dr.  Monroe  to  be  acquitted ;  but  this  man  Wood,  being  a  merchant 
in  Philpot  Lane,  and  having  been  carried  through  the  city  in  his 
way  to  the  mad-house,  he  indicted  Dr.  Monroe  over  again,  for  the 
trespass  and  imprisonment  in  London.  Knowing  that  he  had  lost 
his  cause  by  speaking  of  the  princess  at  Westminster,  and  such 
is  the  extraordinary  subtlety  and  cunning  of  mad-men,  that  when  he 
was  cross-examined  on  the  trial  in  London,  as  he  had  successfully 
been  before,  in  order  to  expose  his  madness,  all  the  ingenuity  of 
the  bar,  and  all  the  authority  of  the  court,  could  not  make  him 
say  a  single  word  about  the  topic  which  had  put  an  end  to  the 
indictment  before,  although  he  still  had  the  same  indelible  im- 
pression upon  his  mind,  as  he  signified  to  those  who  were  near 
him ;  but  conscious  that  the  delusion  had  occasioned  his  defeat 
t  Westminster,  he  obstinately  persisted  in  holding  it  back.  And 
it  was  only  by  proving  the  particulars  of  the  former  examination, 
that  Dr.  Monroe  established  his  innocence  of  the  charge." 

In  this  way  did  Erskine  carry  his  defense  through  successfully ; 
satisfying  the  court  and  jury  that  a  person  may  have  great  judg- 
ment, caution  and  prudence, — that  he  may  appear  to  the  world 
to  be  sane,  and  baffle  the  ablest  counsel  in  demonstrating  the 
contrary,  and  still  be  absolutely  insane  upon  one  or  more  sub- 
jects. 

Mr.  Noyes  related  the  following  fact,  in  his  argument  in  the 
Huntington  case :  "  I  know  an  accomplished  and  intelligent  lady, 
who  thought  her  feet  were  made  of  glass ;  she  was  clearly  insane 
in  regard  to  that  subject.  I  have  seen  her,  at  the  dinner  table, 
move  the  chairs  all  out  of  the  way,  for  fear  her  feet  would  be 
smashed." 

The  Rev.  Dr.  Sprague,  in  his  "  Annals  of  the  American  Pulpit," 
relates  the  following  facts  in  the  life  of  the  Rev.  Daniel  Haskell, 
a  literary  graduate  of  Yale  College,  a  theological  graduate  of 
25 


386  MEDICAL   EVIDENCE. 

Princeton,  and  was  for  eleven  years  settled  over  a  church  in 
Burlington,  Vermont,  which  office  he  held  with  general  accep- 
tance, when  he  was  chosen  president  of  Vermont  University. 
After  holding  this  position  a  short  time  he  became  deranged, 
from  what  appeared  to  be  a  metastasis  of  rheumatism.  He  was 
separated  for  many  years  from  his  family,  wandering  from  State 
to  State,  often  placed  in  insane  institutions,  without  relief. 

His  peculiar,  partial  insanity  or  delusion  was,  that  he  was,  as 
he  supposed,  "shut  out  from  a  world  of  hope;  a  wanderer,  where, 
he  could  not  tell ;  save  only  of  this,  that  he  had  not  passed  the 
judgment.  At  the  hight  of  his  malady,  there  was  a  time  when 
he  supposed  himself  to  have  passed  out  of  this  state  of  being ; 
he  knew  it,  and  from  this  fact  all  hope  for  him  was  gone  forever. 
Christ  and  his  salvation  were  only  offered  to  sinners  in  the  world 
where  he  once  was ; — he  would  not  suffer  himself  to  be  deceived 
by  false  appearances ; — he  would  not  believe  a  lie.  For  a  time 
he  was  incapable  of  business  or  enjoyment, — his  flesh  wasted 
away,  and  he  had  the  look  of  despair  at  times,  but  not  always. 
In  his  latter  years  he  was  cheerful,  and  though  he  did  not 
acknowledge  any  change  of  opinion,  he  lost,  in  a  measure,  the 
sense  of  his  miserable  condition,  and  found  it  almost  impossible 
to  realize  what  he  supposed  to  be  true." 

Yet,  while  this  delusion  held  its  position  inflexibly,  all  the 
other  intellectual  operations  were  clear,  strong,  correct  and 
active.  He  would  reason  and  investigate  correctly.  He  was 
engaged  by  schools  and  lyceums  to  lecture,  and  his  addresses 
were  able  and  instructive,  and  often  sought  after  for  publication. 
Associated  with  another  person,  he  published  the  Gazetteer  of 
the  United  States,  and  afterward  edited  McCullock's  Geographical 
Dictionary.  He  also  was  an  adept  in  mechanism,  constructing 
apparatus  for  schools,  etc. 

Dr.  Cox,  of  Brooklyn,  who  was  for  some  years  the  pastor  of 
Mr.  Haskell,  says :  "  He  was  a  man  of  great  strength  and  sound- 
ness of  mind, — with  this  single  exception;  that  he  was  dis- 
tinguished for  his  attainments  in  science,  literature,  general  read- 


INSANITY    IN    ITS    LEGAL    RELATIONS.  387 

ing,  well  digested  thought  and  theological  erudition ;  that  ho  was 
a  person  of  deep  and  genuine  piety ;  beneficent  and  useful  in  the 
whole  tenor  of  his  life.  He  was  a  profound  mathematician  and 
.astronomer,  and  occupied  much  of  his  leisure  time,  in  the  almost 
twelve  years  that  I  was  his  pastor,  as  well  as  before,  in  exploring 
the  wonders  of  that  magnificent  science,  in  preparing  and 
manufacturing  globes,  planetariums.  instruments,  and  learned 
helps  for  its  prosecution ;  in  studying  history,  chronology  and 
antiquities,  always  engaged,  and  seeming  to  abhor  idleness." 
"His  words  were  fine,  his  conversation  rather  reserved.  He 
seemed  to  court  solitude  rather  than  society." 

Dr.  Cox  says  of  the  peculiar  form  of  the  delusion  under 
which  Haskell  labored :  "  He  thought  he  was  dead,  since  some 
definite  epoch  gone  by ;  that  he  was  no  longer  a  prisoner  of  hope 
or  probationer  for  eternity;  that  it  was  in  some  other  world, 
not  this,  he  formerly  lived ;  that  he  was  a  rebel, — selfish,  dis- 
obedient, antagonistic  to  his  God ;  and  that  God  had  removed 
him  into  another  state,  where  he  was  then  remaining,  although  it 
was  a  mystery !  Hence  he  would  not  pray.  It  would  be  wicked- 
ness and  impiety  for  him  to  attempt  it.  Sometimes  Mr.  Haskell 
would  forget  his  mania,  interested  in  some  object  or  topic  of 
conversation.  But  any  reference  made  to  it,  or  recollection  of  it 
by  himself,  at  once  restored  his  melancholy  consistency,  as  the 
solemn  contraction  of  his  countenance  always  evinced.  Once, 
in  conversation,  it  suddenly  thundered,  after  a  very  vivid  flash 
of  lightning,  interrupting  the  course  of  thought  and  speech. 
As  he  was  thus  abruptly  stopped  in  the  midst  of  cheerful  talk, 
one  of  the  company  asked  him  if  that  was  not  very  much  like 
real  thunder  and  lightning.  The  absurdity  struck  him,  and  he 
said  with  an  involuntary  smile :  *  It  seems  very  like  what  I  re- 
member in  the  world  where  I  once  was.'  His  mania  was  quite 
incurable.  It  was  indeed  the  most  perfect  illustration  of  mono- 
mania, or  insanity  on  one  point  only,  that  I  ever  knew ;  on  all 
other  subjects,  especially  when  he  forgot,  he  was  sane,  sensible, 
learned,  instructive  and  engaging.  He  loved  his  friends,  and 


388  MEDICAL   EVIDENCE. 

seemed  ever  to  have  on  his  spirit  a  clear  and  subduing  sense  of 
the  ubiquity  and  supremacy  of  God." 

There  can  be  no  doubt  that  Mr.  Haskell  was  completely 
insane  on  one  subject,  and  at  the  same  time,  clear,  logically  cor- 
rect, and  strong  in  all  his  other  intellectual  phenomena ;  with  a 
conscience  tender,  enlightened  and  morally  sound.  Dr.  Hough, 
professor  in  Middlebury,  attests  all  of  this. 

How  can  cases  of  this  kind  be  accounted  for  on  the  theory  of 
'.he  individuality  of  the  mind  and  the  unity  of  consciousness? 

NOTE— But  in  justice  to  a  great  subject  upon  which  it  descants  most  luminously, 
because  most  briefly — the  subject  of  all  subjects  in  medical  lurisprudence— in 
justice  to  the  overwhelming  importance  which  must  everywhere,  and  in  all 
places,  attach  to  the  phenomena  of  mental  disease,  aud  the  legal  conditions  flow- 
ing out  of  them,  we  venture  to  pause  and  utter  a  few  words  over  the  chapter  on 
Insanity  At  the  outset  we  may  say  that  any  intelligent  man  may  talk  flippantly 
enough  on  the  above  topic,  up  to  a  certain  point,  because  common  observation  of 
functional  derangements  in  the  brain  as  manifested  iu  intoxication  and  somnam- 
bulism are  of  every  day  occurrence,  and  to  the  inexperienced  eye  simulate  forms 
of  chronic,  organic  disturbance.  Inasmuch  also  as  the  causa  cancans  of  insanity 
is  in  most  instances  as  completely  hid  from  the  physician  as  from  the  layman, 
each  meets  on  equal  terms  in  the  deep,  dark  mine  of  mental  pathology.  Beyond 
a  certain  point  medical  knowledge  avails  nothing — up  tt>  a  certain  point  it  avaik 
much.  When  the  physician  has  reached  his  ultima  Thule  he  can  see  no  better 
than  the  layman  who  had  followed  him,  and  this  conviction  of  the  inability  of 
penetrating  the  mental  constitution  beyond  its  most  superficial  operations,  gives 
every  man  the  right  to  have  "  his  say  "  up  to  those  pillars  of  Hercules  beyond 
which  lies  the  psychical  Atlantis.  Hence,  as  Prof.  Elwell  tells  us,  "  Countless 
volumes  having  been  written  by  the  ablest  minds  of  the  medical  profession  upon 
the  great  subject ;  quarterly  and  monthly  periodicals  having  been  established  ex- 

Eressly  for  its  discussion  and  elucidation  ;  some-of  the  ablest  thinkers  in  medicine 
aving  made  it  for  a  lifetime  a  specialty the  popular  mind  and  general 

reader  come  naturdly  to  conclude  that  the  whole  fubject  is  well  understood." 
But  when  either  lawyer  or  physician  comes  to  investigate  and  apply  rules  of  law 
to  any  individual  case  he  finds,  lamentabile  dictu — "That  notwithstanding  all 
that  has  been  accomplished  by  the  accumulation  of  facts,  and  the  enunciation  and 
dicusssion  of  theories  upon  the  subject  of  insanity,  especially  during  the  last  cen- 
tury, the  whole  question  is  still  subjudice." 

With  names  and  classifications  the  author  tells  us  that  courts  have  nothing  to 
do.  and  were  courts  more  prone  to  remember  this  they  would  most  assuredly  reject 
the  eqvivocal  name  of  moral  insanity  from  their  adjudicationa  And  in  this  con- 
nection we  cannot  help  saying  that  if  there  be  among  all  the  chapters  in  this  truly 
valuable  book,  one  which  we  particularly  consider  as  the  keystone  of  all  the  rest — 
and  whose  honest,  frank,  and  conservative  tone  will  do  more  to  beget  a  true 
medico  legal  union  before  the  courts,  where  now  we  so  often  have  a  complete 
antagonism  of  the  two  prosessions,  it  is  the  chapter  on  "  The  Position  of  the 
Courts  upon  Insanity. "  Indeed,  throughout  all  his  discussions  upon  this  vexed 
question,  Prof.  Elwell  shows  the  fruits  of  a  large  observation  of  facts,  as  well  as 
of  .critical  examination  into  the  legal  and  physical  causes  of  divergence  between 
the  professions  of  law  and  medicine.  And  we  shall  be  much  mistaken  if  the  dis- 
semination of  his  logic  does  not  produce  a  radical  change  in  the  minds  of  many  of 
those  whose  chief  delight  it  has  been,  in  season  and  out  of  season,  to  heap  reproach 
upon  the  courts,  for  not  surrendering  at  once  some  of  the  most  cardinal  principles 
of  human  government  as  applied  to  rational  responsible  beings."  Prof.  John 
Ordronaux  m  New  York  Journal  of  Medicine. 


CHAPTER  XXVIII. 

THE  COURTS— PARTIAL  INSANITY— DELUSION. 

THE  term  "  partial  insanity,"  as  used  by  writers  upon  insanity, 
does  not  seem  to  have  a  fixed  and  definite  meaning.  One  class 
declare,  while  they  admit  that  there  is  a  state  of  the  mind  called 
muiiornania,  that  the  mind  being  a  unit,  there  is  no  such  con- 
dition as  partial  insanity ;  that  if  the  mind  is  diseased  at  all,  it 
is  unsound  as  a  whole  in  every  respect. 

The  effort  of  Erskine,  therefore,  though  successful  in  the  Had- 
field  case,  did  not  render  his  position  satisfactory  and  conclusive 
in  the  opinion  of  some,  so  the  discussion  still  goes  on. 

Dr.  Gilman,  in  answer  to  a  question  by  Mr.  Noyes,  on  the 
Huntington  trial,  said :  "  I  pronounce  Huntington  insane.  I 
make  no  distinction.  I  do  not  believe  in  a  man  being  partially 
insane.  There  is  a  state  of  things  which  is  called  monomania, 
but  I  call  him  insane.  According  to  Lord  Brougham,  the  mind 
is  a  totality"  On  the  other  hand,  Dr.  Willard  Parker,  as  we 
have  seen,  on  the  same  occasion,  while  agreeing  with  Dr.  Gilman 
in  most  of  his  views,  differed  with  him  in  this,  holding  that  (here 
was  such  a  state  as  "  partial  insanity."  The  English  medical 
authority  is  also  divided  on  this  question,  consequently  the  legal 
state  of  the  question  is  somewhat  unsettled. 

The  term  "delusion,"  so  much  used  by  judges  and  others, 
seems  sometimes  to  mean  complete  insanity,  but  generally  only 
partial  or  limited  dementia.  The  meaning  of  the  term  is  not  set- 
tled. In  the  case  of  Drew  v.  Clark,  Sir  John  NICHOLL  says :  "  The 
true  test  of  insanity,  I  take  to  be  the  absence  or  presence  of  what, 
used  in  a  certain  sense,  is  comprehended  in  a  single  term,  viz : 

(389) 


390  MEDICAL   EVIDENCE. 

delusion.  In  the  absence  of  any  thing  in  the  nature  of  delusion, 
the  supposed  lunatic  is,  in  my  judgment,  not  properly  insane." 
Lord  DENMAN  also  says,  in  Regina  v.  Smith :  "  To  say  a  man  was 
irresponsible,  without  positive  proof  of  any  act  to  show  that  he 
was  laboring  under  some  delusion,  seemed  to  him  to  be  a  pre- 
sumption of  knowledge,  which  none  but  the  great  Creator  could 
himself  possess." 

Mr.  Chitty  says :  "  The  test  of  insanity,  where  there  is  no 
phrensy  or  raving,  is  the  absence  or  presence  of  delusion;  and 
delusion  exists  whenever  an  individual  once  conceives  something 
extravagant  to  exist,  which  has  no  existence,  and  when  he  is. 
incapable  of  being  reasoned  out  of  that  absurd  conception.  In 
criminal  cases,  therefore,  the  question  is  simply  adapte  1  to  the 
comprehension  of  every  juryman,  whether  at  the  time  that  the 
act  was  committed,  the  prisoner  was  incapable  of  judging  between 
right  and  wrong,  and  did  not  then  know  that  the  particular  act 
was  an  offense  against  the  law  of  God  and  nature." 

Lord  BROUGHAM  defines  a  delusion  to  be  "a  belief  of  things 
as  realities,  which  exist  only  in  the  imagination  of  the  patient." 
Sir  John  NICHOLL  says :  "  A  delusion  is  a  belief  of  facts  which 
no  rational  reason  would  have  believed."  To  this  last  definition 
Lord  BROUGHAM  takes  exception,  and  says  it  gives  a  conse- 
quence for  a  definition.  Mr.  Winslow  gives  still  another  definition, 
which  he  thinks  is  free  from  the  objections  to  which  the  above 
are  obnoxious.  "A  delusion,"  he  says,  "is  a  belief  in  the  ex- 
istence of  a  something  extravagant,  which  has,  in  reality,  no 
existence,  except  in  the  diseased  imagination  of  the  party,  and 
the  absurdity  of  which  he  can  not  perceive,  and  out  of  which  he 
can  not  be  reasoned."  Then  again,  it  has  been  held  that  delusion 
was  not  essential  to  insanity.  Lord  CAMPBELL,  in  the  celebrated 
Bainbrigge  will  case,  said:  that  "Mania  may  exist  without 
delusion"  In  extreme  cases,  the  person  being  insane  on  all  sub- 
jects, there  is  no  special  delusion,  but  a  general  one  on  matters 
of  reason.  The  test,  therefore,  of  a  delusion,  does  not  necessarily 
differ  from  that  of  partial  insanity,  and  it  is  about  as  indefinite ; 


THE   COURTS PARTIAL   INSANITY DELUSION.  391 

nor  is  it  improbable  that  the  courts  have  generally  intended  the 
one  for  the  other. 

There  has,  perhaps,  been  less  confusion  on  this  subject  in  the 
American  courts,  than  in  those  of  England.  There,  the  regard  for 
old  precedents  and  old  opinions  are  a  little  stronger  than  in  this 
country.  Our  courts,  therefore,  more  readily  adapt  themselves  to 
the  equity  and  circumstances  of  the  case  than  in  England,  though 
governed,  to  a  great  extent,  by  the  decisions  of  that  country. 

This  point  was  ably  discussed  by  W.  H.  Seward  and  John  Van 
Buren,  and  thoroughly  considered  by  the  court,  in  the  case  of 
Freeman  v.  The  People,  4  Denio,  R.  27.  In  this  case  the 
court  below  charged  the  jury,  impanneled  to  try  whether  the 
prisoner,  indicted  for  murder,  was  at  the  time  of  trial  insane, 
that  they  were  to  decide, "whether  the  prisoner  knew  right  from 
wrong,  and  if  he  did  not,  then  he  was  to  be  considered  insane." 
This  charge,  it  was  claimed,  was  erroneous.  BEARDSLEY,  C.  J., 
held:  "That  a  state  of  general  insanity,  the  mental  powers  being 
wholly  prevented  or  obliterated,  would  necessarily  preclude  a  trial ; 
for  a  being  in  that  deplorable  condition  can  make  no  defense  what- 
ever. Not  so,  however,  where  the  disease  is  partial,  and  confined 
to  one  subject,  other  than  the  imputed  crime,  and  contemplated 
trial.  A  person  in  this  condition  may  be  fully  competent  to 
understand  his  situation  in  respect  to  the  alleged  often  se,  and  to 
conduct  his  defense  with  discretion  and  reason.  Of  this  the 
jury  must  judge :  and  they  should  be  instructed,  that  if  such 
is  found  to  be  his  condition,  it  will  be  their  duty  to  pronounce 
him  sane.  In  the  case  at  bar,  the  court  professed  to  furnish  a 
single  criterion  of  sanity,  that  is,  a  capacity  to  distinguish 
between  right  and  wrong.  This,  as  a  test  of  insanity,  is  by  no 
means  invariably  correct;  for,  while  a  person  has  a  very  just 
perception  of  the  moral  qualities  of  most  actions,  he  may,  at  the 
same  time,  as  to  some  one  in  particular,  be  absolutely  insane,  and 
consequently,  as  to  this  be  incapable  of  judging  accurately 
between  right  and  wrong.  If  the  delusion  extends  to  the  alleged 
crime,  or  the  contemplated  trial,  the  party  manifestly,  is  not  in  a 


392  MEDICAL    EVIDENCE. 

fit  condition  to  make  his  defense,  however  sound  his  mind  may  be 
in  other  respects ;  still  the  insanity  of  such  a  person  being  only 
partial,  not  general,  a  jury,  under  a  charge  like  that  given  by  the 
court  below  on  this  case,  might  find  the  prisoner  sane,  for  in 
some  respects  he  would  be  capable  of  distinguishing  between  right 
and  wrong.  Had  the  instruction  been,  that  the  prisoner  was  to 
be  deemed  sane,  if  he  had  a  knowledge  of  right  and  wrong  in 
respect  to  the  crime  with  which  he  stood  charged,  there  would 
have  been  but  little  fear  that  the  jury  could  be  misled ;  lor  a 
person  who  justly  apprehends  the  nature  of  a  charge  made 
against  him,  can  hardly  be  supposed  to  be  incapable  of  defending 
himself  in  regard  to  it  in  a  rational  way.  At  the  same  time,  it 
would  be  well  to  impress  distinctly  on  the  minds  of  jurors,  that 
they  are  to  gauge  the  mental  capacity  of  the  prisoner,  in  order  to 
determine  whether  he  is  so  far  sane  as  to  be  competent  in  mind 
to  make  his  defense,  if  he  has  one ;  for,  unless  his  faculties  are 
equal  to  that  task,  he  is  not  in  a  fit  condition  to  be  put  on  his 
trial.  For  the  purpose  of  such  a  question,  the  law  regards  a 
person  thus  disabled  by  disease,  as  non  compos  mentis,  and  he 
should  be  pronounced  unhesitatingly  to  be  insane  within  the  true 
intent  and  meaning  of  this  statute. 

Where  insanity  is  interposed  as  a  defense  to  an  indictment  for 
an  alleged  crime,  the  inquiry  is  always  brought  down  to  the 
single  question  of  a  capacity  to  distinguish  between  right  and 
wrong  at  the  time  when  the  act  was  done.  In  such  case,  the 
jury  should  be  instructed  that,  i  it  must  be  clearly  shown  that, 
at  the  time  of  committing  the  act,  the  party  accused  was  laboring 
under  such  a  delect  of  reason,  from  disease  of  the  mind,  as  not 
to  know  the  nature  and  quality  of  the  act  he  was  doing ;  or  if  he 
did  know  it,  that  he  did  not  know  he  was  doing  what  was  wrong. 
The  mode  of  putting  the  latter  part  of  the  question  to  the  jury, 
on  these  occasions,  has  generally  been,  whether  the  accused,  at 
the  time  of  doing  the  act,  knew  the  difference  between  right  and 
wrong;  which  mode,  though  rarely,  if  ever,  leading  to  any 
mistake  with  the  jury,  is  not  deemed  so  accurate,  when  put 


COURTS PARTIAL   INSANITY DELUSION.  39S 

generally  and  in  the  abstract,  as  when  put  with  reference  to 
the  party's  knowledge  of  right  and  wrong  in  respect  to  the 
very  act  with  which  he  is  charged.'  This  is  the  rule  laid  down 
by  all  the  English  judges  but  one,  in  the  late  case  of  Mc- 
Naghton,  while  pending  in  the  House  of  Lords.  10  C.  &  F.  210. 
In  the  case  of  Oxford,  Lord  DENMAN,  C.  J.,  charged  the  jury  in 
this  manner :  '  The  question  is,  whether  the  prisoner  was  laboring 
under  that  species  of  insanity  which  satisfies  you  that  he  was 
quite  unaware  of  the  nature  or  character  and  consequences  of  the 
act  he  was  committing ;  or,  in  other  words,  whether  he  was  under 
the  influence  of  a  diseased  mind,  and  was  really  unconscious,  at 
the  time  he  was  committing  the  act,  that  it  was  a  crime.'  The 
insanity  must  be  such  as  to  deprive  the  party  charged  with  crime, 
of  the  use  of  reason  in  regard  to  the  act  done.  He  may  be 
deranged  on  other  subjects,  but  if  capable  of  distinguishing 
between  right  and  wrong  in  the  particular  act  done  by  him,  he 
is  justly  liable  to  be  punished  as  a  criminal.  Such  is  the  un- 
doubted rule  of  the  Common  law  on  this  subject.  Partial 
insanity  is  not.  by  that  law,  necessarily  an  excuse  for  crime,  and 
can  only  be  so  where  it  deprives  the  party  of  his  reason  in  regard 
to  the  act  charged  to  be  criminal.  Nor,  in  my  judgment,  was 
the  statute  on  this  subject  intended  to  abrogate  or  qualify  the 
Common  law  rule.  The  words  of  the  statute  are :  'No  act  done 
by  a  person  in  a  state  of  insanity  can  be  punished  as  an  offense. ' 
The  clause  is  very  comprehensive  in  its  terms,  and  at  first  blush, 
might  seem  to  exempt  from  punishment  every  act  done  by  a  per- 
son who  is  insane  upon  any  subject  whatever.  This  would,  indeed, 
be  a  mighty  change  in  the  law,  as  it  would  afford  absolute  impunity 
to  every  person  in  an  insane  state,  although  his  disease  might  be 
confined  to  a  single  and  isolated  subject.  If  this  is  the  meaning  of 
the  statute,  jurors  are  no  longer  to  inquire  whether  the  party  was 
insane  'in  respect  to  the  very  act  with  which  he  is  charged,'  but 
whether  he  was  insane  in  regard  to  any  act  or  subject  whatever  j 
and  if  they  find  such  to  have  been  his  condition,  render  a  verdict 
of  not  guilty.  But  the  statute  is  not  so  understood  by  me.  I 


394  MEDICAL   EVIDENCE. 

interpret  it  as  I  should  have  done  if  the  words  had  been  '  no  act 
done  by  a  person  in  a  state  of  insanity,  in  respect  to  such  act, 
can  be  punished  as  an  offense.'  The  act,  in  my  judgment,  must 
be  an  insane  act,  and  not  merely  the  act  of  an  insane  person. 
This  was  plainly  the  rule  before  the  statute  was  passed,  and 
although  that  took  place  more  than  sixteen  years  since,  I  am  not 
aware  that  it  has,  at  any  time,  been  held  or  intimated  by  any 
judicial  tribunal,  that  the  statute  had  abrogated,  or  in  any  re- 
spect modified,  this  principle  of  the  Common  law." 

The  above  opinion  was  given  on  the  construction  of  a  New 
York  statute;  yet, as  the  statute  is  based  on  the  Common  law, 
the  decision  has  a  general  bearing  and  application,  and  may  be 
considered  the  Common  law  rule. 

It  is  doubtful  whether  the  rule  of  the  Common  law  has  been 
as  uniform  as  intimated  by  the  court;  still,  at  present  this  is  un- 
doubtedly the  rule  of  law  in  England  and  this  country,  and  has 
been  since  the  trial  of  Hadfield,  that  if  the  person  is  sound  on 
every  other  subject,  and  insane  on  the  one  under  which  the 
crime  was  committed,  he  is  irresponsible.1  Or,  as  settled  in  the 
Freeman  case ;  if  the  party  is  insane  or  laboring  under  a  delusion 
on  one  subject,  and  commits  a  crime  not  connected  with  such 
delusion,  he  is  responsible. 

If  the  act  complained  of  has  been  committed  under  an  insane 
condition  of  mind  in  regard  to  the  particular  act  done ;  in  other 
words,  if  the  act  was  an  insane  act,  the  prisoner  is  allowed  to 
go  unpunished,  though  in  every  other  respect,  in  regard  to  all 
other  acts,  he  may  appear  to  be  perfectly  sane.  On  the  other 
hand,  if  he  is  insane  on  all  other  questions,  and  rational  on  the 
one  complained  of, — if  such  a  condition  is  possible, — he  is  to  be 
punished.  The  whole  question  depends  upon  the  fact,  whether 
he  fully  comprehended  the  moral  and  civil  wrong  of  the  transac- 
tion, in  regard  to  the  act  done. 

1  Reg.  v.  Renshaw,  11  Jur.  615,  616 ;  Lord  Ferrers'  Case,  19  St.  Tr.  886— 
946,  947  ;  Hadfield's  Case,  27  Howell's  St.  Tr.  1281—1310 ;  4  Barr.  264 ;  Martin's 
Case,  Shelford  on  Lunacy,  465. 


THE   COURTS PARTIAL   INSANITY DELUSION.  395 

This  rule,  though  much  complained  of,  is  nevertheless  a 
reasonable  one  under  the  present  state  of  the  subject,  and  should 
be  practiced  upon  until  the  revelations  of  physiology,  pathology, 
or  psychology  can  show  it  to  be  wrong,  by  substituting  a  better 
one, — a  thing  not  yet  accomplished.  Nor  will  theoretical  reason- 
ing remove  the  difficulty,  upon  the  assumption  that  the  mind 
being  a  unit,  it  can  not  be  affected  in  part, — that  all  must  suffer 
together, — that  all  parts  are  shadowed  by  a  cloud,  however  small, 
that  may  chance  to  pass  over  one  portion  of  an  otherwise  en- 
lightened intellect.  At  present,  this  is  only  theory.  It  is  an 
assumption  that  the  mind  is  a  unit ;  it  is  another  assumption  that 
if  a  unit,  one  part  can  not  be  affected  without  the  whole  participat- 
ing. It  may  be  true,  and  it  may  not.  As  yet,  this  theory  has 
not  taken  so  tangible  and  positive  a  shape  as  to  permit  the  courts 
to  take  cognizance  of  it  as  an  element  upon  which  they  are  to  act 
in  protecting  society,  personal  rights,  and  in  the  punishment  of 
crime. 

Lord  Brougham's  opinion,  though  of  great  weight,  does,  not 
establish  the  fact  of  the  unity  of  the  mind,  and  the  consequences 
claimed  to  depend  upon  such  unity. 

Chief- Justice  GIBSON  charged  the  jury  as  follows,  in  a  leading 
Pennsylvania  case  :  that  of 

MOSLER  v.  THE  COMMONWEALTH,  4  Barr.  266. 

"  A  man  may  be  mad  on  all  subjects ;  and  then,  though  he 
may  have  glimmerings  of  reason,  he  is  not  a  responsible  agent 
This  is  general  insanity ;  but  if  it  be  not  so  great  in  its  extent 
or  degree  as  to  blind  him  to  the  nature  and  consequences  of  his 
moral  duty,  it  is  no  defense  to  an  accusation  of  crime.  It  must 
be  so  great  as  entirely  to  destroy  his  perception  of  right  and 
wrong;  and  it  is  not  until  that  perception  is  thus  destroyed, 
that  he  ceases  to  be  responsible.  It  must  amount  to  delusion  or 
hallucination,  controlling  his  will,  and  making  the  commission  of 
the  act,  in  his  apprehension,  a  duty  of  overruling  necessity.  The 
most  apt  illustration  of  the  latter  is  the  perverted  sense  of  re- 


396  MEDICAL   EVIDENCE. 

ligious  obligation,  which  has  caused  men  sometimes  to  sacrifice 
their  wives  and  children. 

Partial  insanity  is  confined  to  a  particular  subject,  the  man 
being  sane  on  every  other.  In  that  species  of  madness,  it  is 
plain  that  he  is  a  responsible  agent,  if  he  were  not  instigated  by 
his  madness  to  perpetrate  the  act.  He  continues  to  be  a  legiti- 
mate subject  of  punishment,  although  he  may  have  been  laboring 
under  a  moral  obliquity  of  perception,  as  much  so  as  if  he  were 
merely  laboring  under  an  obliquity  of  vision.  A  man  whose 
mind  squints,  unless  impelled  to  crime  by  this  very  mental 
obliquity,  is  as  much  amenable  to  punishment  as  one  whose  eye 
squints.  On  this  point  there  has  been  a  mistake,  as  melancholy 
as  it  is  popular.  It  has  been  announced  by  learned  doctors,  that 
if  a  man  has  the  least  taint  of  insanity  entering  into  his  mental 
structure,  it  discharges  him  of  all  responsibility  to  the  laws. 

To  this  monstrous  error  may  be  traced,  both  the  fecundity  of 
homicides  which  has  dishonoured  this  country,  and  the  immunity 
that. has  attended  them.  The  law  is,  that  whether  the  insanity  be 
general  or  partial,  the  degree  of  it  must  be  so  great  as  to  have 
controlled  the  will  of  its  subject,  and  to  have  taken  from  him 
the  freedom  of  moral  action. 

But  there  is  a  moral  or  homicidal  insanity,  consisting  of  an 
irresistible  inclination  to  kill,  or  to  commit  some  particular  offense. 
There  may  be  an  unseen  ligament  pressing  on  the  mind,  drawing 
it  to  consequences  which  it  sees,  bat  can  not  avoid,  and  placing 
it  under  a  coercion,  which,  while  its  results  are  clearly  perceived, 
is  incapable  of  resistance.  The  doctrine  which  acknowledges  this 
mania  is  dangerous  in  its  relation,  and  can  be  recognized  only  in 
the  clearest  cases.  It  ought  to  be  shown  to  have  been  habitual, 
or  at  least  to  have  evinced  itself  in  more  than  a  single  instance. 
It  is  seldom  directed  against  a  particular  individual ;  but  that  it 
may  be  so  is  proved  by  the  young  woman  who  was  deluded  by 
an  irresistible  impulse  to  destroy  her  child,  though  aware  of  the 
heinous  nature  of  the  act.  The  frequency  of  this  constitutional 
malady  is  fortunately  small,  and  it  is  better  to  confine  it  within  the 


*    THE   COURTS PARTIAL   INSANITY — DELUSION.  397 

strictest  limits.  If  juries  were  to  allow  it  as  a  general  motive, 
operating  in  cases  of  this  character,  its  recognition  would  destroy 
social  order  as  well  as  personal  safety.  To  establish  it  as  a  justifi- 
cation in  any  particular  case,  it  is  necessary  either  to  show,  by 
clear  proofs,  its  extemporaneous  existence,  of  an  habitual  tendency, 
developed  in  previous  cases,  becoming  in  itself  a  second  nature. 
Now,  what  is  the  evidence  of  mental  insanity  in  this  particular 
case? 

1. — The  prisoner's  counsel  rely  on  his  behaviour,  appearance, 
and  exclamations  at  the  time  of  the  act,  or  immediately  after 
it.  According  to  one  witness,  his  conduct  was  that  of  reckless 
determination,  evincing  an  unsound  mind.  '  I  do  it,'  he  repeated 
three  times,  it  is  said,  like  a  raving  maniac.  But  you  must  recol- 
lect that,  to  commit  murder,  a  man  must  be  wound  up  to  a  high 
pitch  of  excitement.  None  but  a  butcher,  by  trade,  could  go 
about  it  with  circumspection  and  coolness.  The  emotion  shown 
by  the  prisoner  was  not  extraordinary.  He  seemed  to  know  the 
consequences  of  his  act, — was  under  no  delusion, — and  was  self- 
possessed  enough  to  find  a  reason  for  the  act,  that  reason  being 
her  alleged  ill-treatment. 

2. — It  is  urged  that  the  want  of  motive  is  evidence  of  insanity. 
If  a  motive  were  to  be  necessarily  proved  by  the  Commonwealth, 
it  is  shown  in  this  case  by  the  prisoner's  own  declaration ;  but  a 
motive  need  not  always  be  shown, — it  may  be  secret;  and  to 
hold  every  bne  mad  whose  acts  can  not  be  accounted  for  on  the 
ordinary  principles  of  cause  and  effect,  would  give  a  general 
license.  The  law  itself  implies  malice  where  the  homicide  is 
accompanied  with  such  circumstances  as  are  the  ordinary  symp- 
toms of  a  wicked,  depraved  and  malignant  spirit, — a  heart  regard- 
less of  social  duty,  and  deliberately  bent  on  mischief! 

3. — But  it  is  said  there  is  intrinsic  evidence  of  insanity  from  the 
nature  of  the  act.  To  the  eye  of  reason,  every  murderer  may 
seem  a  madman ;  but  in  the  eye  of  the  law  he  is  still  responsible. 

4. — His  trip  to  Pittsburgh  and  voyage  to  Germany,  it  is  con- 
tended, have  not  been  accounted  for,  except  that  he  expected  to 


398  MEDICAL   EVIDENCE. 

get  property  in  the  latter,  but  did  not;  and  there  is  an  equal 
obscurity  about  the  motive  of  his  setting  fire  to  his  wife's  pro- 
perty,— her  barn,  I  think  it  was;  but  these  things  do  not  sho  . 
an  insanity  connected  with  his  crime.  The  only  circumstance 
which  seems  to  point  to  a  foregone  conclusion,  is  the  repeated 
visions  he  had  after  he  started  for  Pittsburgh,  of  his  wife  and  her 
grand-daughter,  whose  throat  he  also  attempted  to  cut,  standing 
at  the  foot  of  his  bed.  This  foreboding  may  tend  to  show  a 
morbidness  of  mind  in  reference  to  this  particular  subject ;  but  it 
is  -for  you  to  say, — keeping  in  mind  the  fact,  that,  to  constitute 
a  sufficient  defense  on  this  ground,  there  must  be  an  entire  de- 
struction of  freedom  of  the  will,  blinding  the  prisoner  to  the  nature 
and  consequences  of  his  moral  duty, — whether  these  circum- 
stances raise  a  reasonable  doubt  of  the  prisoner's  responsibility." 

Thus  the  law  is  laid  down  by  the  courts  of  New  York  and 
Pennsylvania,  and  they  are  followed  perhaps  by  all  the  other 
States.  The  rule  is  general,  and  from  the  nature  of  the  subject 
must  necessarily  be  so.  No  arbitrary  rule  more  definite  than 
this  would  be  at  all  practicable.  And  even  such  as  it  is,  as 
explained  and  understood  by  the  courts,  it  can  not  be  applied 
strictly.  What  is  said  about  "  right  and  wrong,"  does  not  mean 
that  a  knowledge  or  admission  barely,  that  the  act  was  a  bad  or 
unlawful  one,  will  warrant  conviction  in  every  case, — the  whole 
character  of  the  act  must  be  rationally  comprehended,  or  the 
party  is  not  amenable  to  law. 

The  able  editors  of  the  Americal  Journal  of  Insanity,  who  are 
always  clear  and  correct  in  what  they  say  upon  the  subject  of 
insanity,  make  the  following  sensible  suggestions :  "  The  sanity 
or  insanity  of  one,  whose  case  is  under  legal  investigation,  is 
his  responsibility  or  his  irresponsibility, — rather  his  punishability 
or  non-punishability, — his  capacity  or  his  incapacity.  The  medi- 
cal man  does  not  form  an  opinion  in  such  cases,  apart  from  these 
considerations ;  and  he  could  not  if  he  would.  They  are  foremost 
with  him  in  all  cases  presented ; — are  primary  and  inseparable 
from  other  considerations,  and  enter  into  all  his  plans  of  treatment. 


.'       THE   COURTS PARTIAL  INSANITY DELUSION.  399 

Insanity,  in  a  purely  medical  sense,  is  a  hypothetical  form  of 
bodily  disease.  To  the  term  are  referred  only  those  cases  in 
which  mental  derangement  exists,  and  in  which  no  organic  basis 
or  other  proximate  cause  can  be  determined.  Thus,  softening  of 
the  brain,  sun-stroke,  fracture  of  the  skull,  fevers,  and  alcoholic 
and  other  poisoning,  are  not  insanity,  though  more  or  less  con- 
nected with  derangement  of  mind.  How  can  it  for  a  moment  be 
thought  that  this  classification  has  any  thing  to  do  with  the  ques- 
tion of  responsibility  in  any  case.  A  practical  acquaintance  with 
the  phenomena  of  mental  disorder,  and  the  hearing  of  facts  in 
the  medical  history  of  a  case,  can  only  be  brought  to  bear  directly 
upon  the  prime  question  of  responsibility.  Insanity,  in  any  case, 
is  irresponsibility,  or  incapacity,  in  such  a  case.  And  yet  we  are 
:tsked  to  define  insanity  before  the  courts !  We  may  be  thought 
hypercritical  in  attaching  so  much  importance  to  the  theory  and 
classification  of  insanity,  but  we  remember  for  whom  these 
papers  have  been  written.  The  mass  of  medical  practitioners  can 
have  but  little  practical  experience  of  mental  disease,  and  will  be 
greatly  influenced  by  these  theoretical  divisions.  It  is  not  cer- 
tain that  the  medical  witnesses,  in  the  Huntington  case,  would  have 
made  their  unfortunate  error  in  diagnosis,  but  for  the  admission 
by  authorities  of  a  '  moral  insanity,'  which  they  could  not  appre- 
hend in  the  sense  given  it  by  experts  in  insanity.  Although  we 
are  convinced  that  this  theory  would  not  have  warped  the  esti- 
timate  of  this,  or  perhaps  any  case  of  questioned  insanity,  by  their 
distinguished  friend,  who  is  its  chief  advocate  in  this  country."1 
In  determining  the  responsibility  of  a  person,  it  is  necessary 
to  determine  what  extent  of  deviation  from  the  standard  of  a  well- 
balanced  mind  there  may  be,  before  the  responsibility  of  the  party 
is  lost.  Each  person,  too,  must  be  judged  by  his  former  self) 
rather  than  by  the  mental  character  of  another,  as  he  may  have 
eccentricities  peculiar  to  himself. 


1  Journal  of  Insanity  for  April,  1859. 


CHAPTER   XXIX. 

MORAL  INSANITY. 

WE  have  had  occasion  already  to  allude  to  that  specious 
and  dangerous  form  of  insanity,  or  sentimentality,  known  and 
dignified  by  the  name  of  "moral  insanity."  The  importance 
given  to  it  by  two  of  the  first  physicians  in  the  country,  and  the 
use  made  of  it  by  one  of  the  ablest  criminal  lawyers  in  New 
York,  in  the  celebrated  Huntington  case,  render  it  a  phase  of  the 
great  subject  of  insanity  worthy  of  attention  and  discussion. 

The  history  of  the  Huntington  case  is  full  of  interest,  whether 
we  consider  the  immense  amount  of  money  involved,  the  charac- 
ter of  the  defendant,  the  ability  of  the  prosecution,  or  the  singular, 
bold,  and  magnificent  defense. 

Huiitington  had  lived  a  most  reckless  life  in  New  York. 
Always  ready  for  a  venture,  no  matter  what  it  was ; — laying  out 
cemeteries  in  the  vicinities  of  large  towns  and  cities, — getting 
charters  from  State  legislatures  and  establishing  banks, — setting 
up  a  great  laundry  upon  the  Isthmus  for  the  purpose  of  doing  up 
the  washing  of  all  who  passed  over  that  thoroughfare, — and  finally 
establishing  himself  in  Wall  Street  as  a  banker  or  broker,  doing 
business  with  the  sharpest  financiers  in  the  world,  to  the  amount 
of  several  millions  of  dollars,  upon  forged  paper.  When  at  the 
hight  of  these  magnificent  operations,  living  in  the  most  costly 
and  extravagant  style, — having  the  fastest  horses,  the  finest  fur- 
nished houses,  etc.,  he  is  arraigned  for  the  crime  of  forgery.  The 
proof  is  overwhelming,  and  the  amount  incredible,  and  the  defense 
is  "  moral  insanity."  "  Two  physicians  of  the  first  rank  in  their 
profession  learn  the  history  of  the  prisoner  from  his  relations 

(400  ) 


MORAL   INSANITY.  401 

and  counsel,  examine  him  briefly,  and  under  unfavorable  circum- 
stances, two  or  three  times  while  in  prison,  listen  to  the  evidence 
at  the  trial,  and  afterward  testify  to  his  insanity." 

Never  before  had  moral  insanity  assumed  a  character  so  bold 
and  dangerous.  Never  was  a  man  defended  with  greater  ability. 

We  consider  it  proper,  therefore,  to  devote  some  attention  to 
the  subject. 

The  leading  advocates  of  the  theory  of  moral  insanity  in  this 
country,  are  Dr.  Ray, — who  may  be  properly  regarded  as  its 
champion. — Prof.  Oilman,  of  New  York,  and  Dr.  Coventry,  of 
Utica,  New  York.  These  distinguished  writers  urge  moral  insanity 
as  an  excuse  or  defense  for  crime ;  and  they  call  upon  the  courts 
to  suspend  "  the  perpetration  upon  the  scaffold  of  most  cruel  mur- 
der," charging  that  its  practice  presents  a  "long  catalogue  of 
judicial  murders."1  This  stern  and  serious  charge  against  the 
judiciary,  coming  as  it  does  from  so  high  a  quarter,  merits,  and 
requires  candid  consideration.  Moral  insanity  is  a  state  of  mind, 
as  described  by  its  advocates,  where  there  is  no  illusion,  nor 
affection  of  the  intellect,  unless  it  may  arise  from  an  inscrutable 
disease  of  the  brain,  but  in  which  there  is  simply  a  perversion 
of  the  moral  sentiment ;  the  individual  laboring'  under  an  impulse 
to  perform  certain  extravagant  and  outrageous  acts,  injurious  to 
himself  and  others, — such  impulse  being  irresistible,  so  that  he  is 
to  be  held  as  being  no  more  responsible  for  his  acts  or  conduct 
than  an  ordinary  lunatic,  or  infant. 

Prichard's  definition  is :  "A  disorder  of  the  moral  affections 
and  propensities,  without  any  symptoms  of  illusion  or  error,  im- 
pressed on  the  understanding."  Again,  it  is  defined  by  its  advo- 
cates as  "  A  perversion  of  the  natural  feelings,  affections,  inclina- 
tions, temper,  habits,  moral  dispositions,  or  impulses,  without  any 
illusion  or  hallucination,  the  intellectual  faculties  being  more  or 
less  weakened  or  impaired." 

The  application  of  principles  like  these  to  criminal  jurispru- 


1  Dr.  Gilman. 
26 


402  MEDICAL   EVIDENCE. 

dence,  seems  impracticable  and  unsafe,  while  the  present  standard 
of  psychological  science  is  so  low. 

The  Divine  law  alone  takes  cognizance  of  motives;  human 
law  is  limited  to  acts,  and  to  motives  only,  as  developed  by  acts. 
With  the  refined  theories  of  ethics,  human  law  does  not,  and  can 
not  contend.  It  endeavors  to  arrive  at  the  intent  of  the  actor  by 
the  act,  and  its  attendant  circumstances,  the  result  therefore  may 
not  be  certain,  for  the  agencies  involved  are  fallible.  The  Divine 
Judge  is  not  limited  to  an  overt  act  in  determining  the  intent,— 
the  purpose,  the  motive,  the  hidden  thought,  being  at  once  seen 
by  the  Omniscient  eye.  His  judgments  alone  are  without  possi- 
bility of  error. 

The  law  has  its  subtelties,  but  none  so  indefinite  and  shadowy 
as  that  involved  in  "  moral  insanity."  If  this  theory  is  to  be  fol- 
lowed in  this  department  of  Criminal  law,  the  courts  launch  at  once 
upon  an  unexplored  and  unknown  sea,  without  chart  or  magnet. 

The  American  Journal  of  Insanity, — a  journal  that  has,  from 
the  beginning,  steadily  and  ably  borne  up  against  the  powerful 
attempts  that  have  been  made  to  incorporate  this  new  rule  of 
criminal  responsibility  into  our  jurisprudence,  says:  '"Moral 
insanity,  as  commonly  understood  and  defined,  does  not  fall  within 
the  precedents  of  the  Common  law,  and  is  not  provided  for  by 
statute,  un'ess  it  be  under  the  general  term,  'insanity.'  It  may 
be  as  palpable  to  the  eye  of  Omniscience,  and  possibly,  to  the 
scrutiny  of  an  expert,  (expers  ezpertissimus,  he  must  be,)  as 
many  forms  of  physical  disease;  but  to  legal  tribunals  it  is 
shadowy  and  intangible ; — its  very  name  of  *  moral  insanity' 
seems  to  deprive  it  of  legal  recognition  as  a  disease  within  the 
compass  of  exact  definition  and  discrimination ;  and  it  is  even 
doubtful  whether  it  be  a  disease;  and,  therefore,  if  tolerated  as  a 
plea  of  irresponsibility,  it  would,  like  charity,  cover  a  multitude 
of  sins.  Almost  any  man  may  satisfy  his  mind,  if  not  his  con- 
science,— a  sane  man,  perhaps,  the  most  readily, — that  he  has 
been  surprised  into  a  crime  by  some  strange  and  irresistible 
impulse,  some  demoniacal  instigation,  some  fatal  propensity,  or 


MORAL    INSANITY.  403 

some  unaccountable  phrensy,  that  he  could  not  master  for  its 
suddenness  and  its  force.  Such  casualties  may  be,  and  doubt- 
less are ;  but  God  only  can  judge  of  them.  Human  laws  can 
not:  their  nicest  refinements  are  too  gross  for  such  subtilties. 
Beside,  much  of  moral  insanity,  in  the  popular  understanding 
of  the  term,  is  the  want  of  discipline,  and  of  habitual  self-con- 
trol ; — nature  uneducated  and  unchecked  is,  or  very  soon  becomes 
the  spirit  of  Cain, — a  propensity  to  something  wrong, — to  theft, 
to  perjury,  to  homicide,  to  forgery.  If  such  impulses,  instiga- 
tions, propensities  or  phrensies  are  permitted  to  shield  offense 
against  punishment,  St.  Giles'  and  the  Five  Points  might  surfeit 
the  Criminal  courts  with  pleas  of  that  character,  the  result,  not  of 
disease,  but  of  habit  not  absolutely  uncontrollable, — of  such 
defective  discipline,  and  of  such  voluntary  indulgence  in  vicious 
courses  as  have  deadened  the  moral  sense,  and  confounded  the 
appreciation,  without  obliterating  the  knowledge  of  right  and 
wrong,  much  less  the  power  of  choosing  between  then."1 

The  same  high  authority  upon  matters  of  insanity  says :  "  The 
exercise  of  any  discretion  in  criminal  cases,  for  the  tempering  of 
justice  to  society,  with  mercy  to  the  accused,  is  legally  confided 
to  the  executive  authority,  and  not  to  the  tribunals ;  subject  to 
the  practical  qualification,  that  juries  sometime  leave  no  room  for 
the  exercise  of  any  discretion  but  their  own,  by  finding  a  verdict 
that  absolves  the  accused.  A  humane  jury  will,  in  cases  appeal- 
ing to  their  sympathy,  and  showing,  what  in  France  are  called 
'  extenuating  circumstances,'  seize  upon  the  most  trifling  evi- 
dence of  insanity  to  justify  a  verdict  in  consonance  with  their 
sense  of  humanity,  rather  than  with  the  rigid  ness  of  the  law. 
Juries  are  usually  above  law,  when  law  itself  is  not  flexible 
enough  to  conform  to  the  dictates  of  a  reasonable  sympathy,  and 
then  it  is,  their  legal  conscience  surrenders  to  the  dictates  of  their 
moral  conscience,  confident  that  the  common  suffrages  of  the 
humane  will  applaud  their  decision." 

1  The  American  Journal  of  Insanity,  Vol.  12,  p.  339. 


404  MEDICAL   EVIDENCE. 

Sir  Benjamin  Brodie,  the  distinguished  philosopher  and  surgeon, 
says :  "  The  law  makes  a  reasonable  allowance  of  time  for  the 
subsiding  of  passion  suddenly  provoked,  but  we  are  not  therefore, 
to  presume  that  ihe  same  allowance  is  to  be  made  for  those  in 
whom  a  propensity  to  set  fire  to  their  neighbor's  house,  or  commit 
murder,  is  continued  fur  months,  or  weeks,  or  even  for  hours.  Is 
it  true  that  such  persons  are  really  so  regardless  of  the  ill  conse- 
quences which  may  arise,  so  incapable  of  the  fear  of  punishment, 
and  so  absolutely  without  the  power  of  self-restraint,  as  they  have 
been  sometimes  represented  to  be  ?  If  not,  there  is  an  end  of 
their  want  of  responsibility.  Take  the  case  of  a  gouty  patient. 
Under  the  influence  of  his  disease,  every  impression  made  on  his 
nervous  system  is  attended  with  uneasy  sensations.  If  such  a 
person  has  exerted  himself  to  acquire  the  habit  of  self-control, 
the  evil  ends  with  himself,  but  otherwise  he  is  fractious  and  peev- 
ish ;  flies  into  a  passion  without  any  adequate  cause,  with  those 
around  him,  and  uses  harsh  words  which  the  occasion  does  not 
justify,  conduct  of  which  he  can  offer  to  himself  no  explanation 
except  that  he  can  not  help  it,  and  for  which,  if  he  is  a  right- 
minded  man,  he  is  afterward  sorry.  If  he  were  to  yield  to  the 
impulse  of  his  temper  so  far  as  to  inflict  on  another  a  severe 
bodily  injury,  ought  it  to  be  admitted  as  an  excuse,  that  Dr. 
Garrod  had  examined  his  blood  and  found  in  it  too  large  a  propor- 
tion of  iithic  acid  ?  Yet  when  the  boy.  Oxford,  yielded  to  what 
was  probably  a  less  violent  impulse,  which  caused  him  to  endea- 
vor to  take  away  the  life  of  the  Queen,  the  jury  acquitted  him, 
on  the  ground  of  his  being  the  subject  of  *  moral  insanity.'  It 
seems  to  me  that  juries  have  not  unfrequently  been  misled  by 
the  refinements  of  medical  witnesses,  who,  having  adopted  the 
theory  of  purely  moral  insanity,  have  applied  that  term  to  cases 
to  which  the  term  insanity  ought  not  to  be  applied  at  all.  It  is 
true,  that  difference  in  the  character  of  individuals  may  frequently 
be  traced  to  a  difference  in  their  organization,  and  to  different 
conditions  as  to  bodily  health ;  and  that,  therefore,  one  person 
has  more,  and  another  less  difficulty  in  controlling  his  temper 


MORAL    INSANITY.  405 

and  regulating  his  conduct.  But  we  have  all  our  duties  to  per- 
form, and  one  of  the  most  important  of  these  is,  that  we  should 
strive  against  whatever  evil  tendency  there  may  be  in  us  arising 
out  of  our  physical  condition.  Even  if  we  admit,  (which  I  do 
not  admit  in  reality,)  that  the  impulse  which  led  Oxford  to  the 
commission  of  his  crime  was  at  the  time  irresistible,  still  the 
question  remains,  whether,  when  the  notion  of  it  first  haunted 
him,  he  might  not  have  kept  it  under  his  control,  and  thus  pre- 
vented him  from  passing  into  that  state  of  mind  which  was 
beyond  his  control  afterward.  If  I  am  rightly  informed,  Oxford 
was  himself  of  this  opinion ;  as  he  said,  when  another  attempt 
was  made  to  take  away  the  life  of  the  Queen,  'that  if  he  himself 
had  been  hanged  this  would  not  have  happened.'  We  have  been 
told  of  a  very  eminent  person,  who  had  acquired  the  habit  of  touch- 
ing every  post  that  he  met  with  in  his  walks,  so  at  last  it  seemed 
to  be  a  part  of  his  nature  to  do  so ;  and  that  if  he  found  that  he 
had  inadvertently  passed  by  a  post  without  touching  it,  he  would 
actually  retrace  his  steps  for  the  purpose.  I  knew  a  gentleman 
who  was  accustomed  to  mutter  certain  words  to  himselfj  (and  they 
were  always  the  same  words.)  even  in  the  midst  of  company.  He 
died  at  the  age  of  ninety,  and  I  believe  that  he  muttered  these 
words  for  fifty  or  sixty  years.  These  were  foolish  habits ;  but 
they  might  have  been  mischievous.  To  correct  them  at  last 
would  have  been  a  very  arduous  undertaking.  But  might  not 
this  have  been  easily  done  at  the  beginning?  and  if  so, — if 
instead  of  touching  posts,  or  muttering  unmeaning  words,  these 
individuals  had  been  addicted  to  stealing  or  stabbing, — ought  they 
to  have  been  absolved  from  all  responsibility  ?  It  has  been 
observed  by  a  physician,  who  has  had  large  opportunities  of 
experience  in  those  matters,  that  'a  man  may  allow  his  imagi- 
nation to  dwell  on  an  idea  until  it  acquires  an  unhealthy  ascen- 
dency over  his  intellect.'1  And  surely,  if  under  such  circum- 
stances, he  were  to  commit  a  murder,  he  ought  to  be  held  a 

i  Forte  Winslow. 


406  MEDICAL   EVIDENCE. 

murderer,  and  would  have  no  more  claim  to  be  excused  than  a 
man  who  voluntarily  associated  himself  with  thieves  and  mur- 
derers until  he  has  lost  all  sense  of  right  and  wrong ;  and  much- 
less  than  one  who  has  had  the  misfortune  of  being  born  and  bred 
among  such  malefactors.  *  *  *  *  It  certainly  seems  to- 
me to  be  not  less  absurd  in  itself  than  it  is  dangerous  to  society 
at  large,  to  hold  that  any  one,  whom  the  dread  of  being  punished 
might  deter  from  the  commission  of  crime,  is  not  a  fit  subject  of 
punishment.  At  the  same  time,  I  fully  admit  that  a  more  or  less 
unsoundness  of  mind  may  afford  a  sufficient  reason  for  commut- 
ing, or  modifying  the  nature  of  the  penalty.  Allow  me  to  add, 
that  it  is  a  very  great  mistake  to  suppose  that  this  is  a  question 
which  can  be  determined  only  by  medical  practitioners.  Any 
one  of  plain,  common  sense,  and  having  a  fair  knowledge  of 
human  nature,  who  will  give  it  due  consideration,  is  competent 
to  form  an  opinion  on  it,  and  it  belongs  fully  as  much  to  those 
whose  office  it  is  to  administer  the  law,  as  it  does  to  the  medical 
profession."1 

Dr.  D.  M.  Reese,  who  has  discussed  this  question  in  an  abla 
report  to  the  American  Medical  Association,  upon  the  subject,, 
says :  '"  But  we  now  proceed  to  inquire  *  wherein  does  such  moral 
insanity  differ  from  moral  depravity?  as  defined  by  our  stand- 
ards ?  '  I  find  a  law  in  my  members,  warring  against  the  law  in 
my  mind.'  '  When  I  would  do  good,  evil  is  present  with  me.' 

*  He  that  knoweth  to  do  good,  and  doeth  it  not,  to  him  it  is  sin.' 

*  He  that  knoweth  his  Master's  will,  and  doeth  it  not,  he  shall  be- 
beaten  with  many  stripes.'    '  As  a  man  thinketh,  so  is  he.' '  Video 
meliora  proboque,  deteriora  sequor?     'I  see  the  good,  and  yet 
the  ill  pursue.'    Here  we  see  by  Christian  and  heathen  authorities,, 
that  such  'moral  insanity'  is  a  synonym    of  'moral  depravity,' 
and  that  responsibility  and  '  punishability '  are  not  to  be  shunned 
or  evaded  by  this  plea.     Intellectual  insanity,  resulting  from 


1  Mind  and  Matter ;  or,  Physiological  Inquiries,  etc.,  by  Sir  Benjamin  Brodier 
Bart.,  D.  C.  L.;  Vice-president  of  the  Royal  Society,  99—104. 


MORAL   INSANITY.  407 

physical  disease  in  the  brain,  either  functional  or  organic,  and  to 
an  extent  which  incapacitates  from  reasoning  correctly,  by  reason 
of  illusion,  delusion,  delirium,  or  hallucination,  can  alone  release 
from  the  obligation  of  morals  and  law,  in  the  judgment  of  sound 
judicial  authorities. 

The  writers  who  have  successively  urged  this  plea  of  ( moral 
insanity,'  in  behalf  of  criminals  of  every  grade,  maintain  the 
doctrine  that  the  instances  of  moral  depravity,  and  especially  the 
examples  of  the  most  hideous  crimes,  all  are  so  many  evidences 
that  ( moral  insanity '  exists,  and  that  the  parties  are  thus  de- 
praved, because  of  this  malady.  The  greater  the  criminal,  s:iy 
they,  the  more  reason  exists  for  interposing  this  plea,  for  no  man 
in  his  senses  would  or  could  perpetrate  such  '  deeds  of  blood,  as 
make  the  cheek  of  darkness  pale/  Hence,  the  practical  effects 
of  their  creed  are  avowed  to  be  sought  in  the  abolition  of  the  gal- 
lows, and  the  conversion  of  our  prisons  and  penitentiaries  into 
hospitals,  where  the  perpetrators  of  capital  crimes  should  be 
treated  as  patients,  and  not  as  criminals.  Such  men,  they  argue, 
are  only  the  victims  of  a  ' faulty  organization,'  their  'moral 
organs'  being  too  active,  by  reason  of  morbific  causes,  which 
impel  them  to  their  guilty  career,  with  an  ( irresistibility,'  of  which 
they  are  the  hapless  victims. 

They  differ  with  the  great  German  expert,  Heinroth,  who 
stoutly  maintained  that  all  insanity  originates  in  vice,  for  they 
assume  the  opposite  doctrine,  that  all  vice  has  its  origin  in 
insanity.  Hence,  they  avow  the  opinion  that  the  commission  of 
crime  is  prima  fade  evidence  of  '  moral  insanity.'  Irresponsi- 
bility is  therefore  claimed  for  all  law-breakers,  and  the  more  des- 
perate the  criminal,  the  stronger  is  the  evidence  that  he  is  morally 
insane. 

There  is  a  specific  sense  in  which  all  the  guilty  and  depraved 
may  be  said  to  be  morally  insane,  as  is  distinctly  taught  in  the 
Scriptures,  and  insisted  on  by  a  large  class  of  theologians.  The 
mooted  questions  of  natural  ability,  and  moral  inability,  co-exist- 
ing in  the  same  mind,  are  urged  as  exhibiting  a  clear,  intellectual 


408  MEDICAL   EVIDENCE. 

perception  of  the  path  of  duty,  in  those  who  are  so  imbecile  in 
their  will  that  their  corrupt  passions,  strengthened  by  evil  habits 
and  vicious  associations,  overrule  their  intellect,  and  precipitate 
them  into  vice  and  crime.  Such  depravity  may  become  irresis- 
tible, and  yet  irresponsibility  can  not  be  predicated  in  such  cases ; 
but  the  contrary,  since  their  moral  inability  is  self-originated. 
Insanity  may  be,  in  a  multitude  of  cases,  the  result  of  such  de- 
pravity, by  the  vicious  indulgence,  when  often  repeated  and  long 
continued,  involving  the  structure  of  the  brain  in  serious  or 
hopeless  physical  disease. 

That  distinguished  philosopher  and  philanthropist,  Dr.  Benja- 
min Rush,  before  the  commencement  of  the  present  century, 
seems  to  have  been  the  first  to  recognize  that  form  of  insanity, 
since  called  dipsomania,  and,  indeed,  he  preceded  Pinel  himself, 
in  pleading  for  habitual  drunkards,  by  ascribing  their  follies  and 
crimes  to  moral  insanity,  which  he  defined  '  derangement  of  the 
moral  faculty,  or  morbid  operations  of  the  will.'  Hence,  to 
rescue  such  from  the  penalties  of  Criminal  law,  he  urged  the 
opening  of  hospitals,  or  sober  houses,  for  their  physical  restraint 
and  moral  treatment,  alleging  that  they  were  as  fit  subjects  for 
such  sympathy,  as  other  mad  people.  He  declared  all  such  to 
be  monomaniacs,  the  victims  of  physical  disease,  which  he,  with 
philosophical  accuracy,  located  in  the  brain.  He  taught  that, 
although  their  drinking  habits  were  the  fruit  of  moral  depravity 
at  first,  yet,  after  the  brain  itself  had  become  diseased  by  this 
vice  of  indulgence,  their  continued  drinking  was  the  result  of 
insanity. 

The  professions  of  both  medicine  and  law  have  conceded 
the  justice  of  his  views,  and  hence  a  wise  distinction  has  been 
made  in  the  statutes  between  the  delirium  of  recent  intoxication, 
which  is  regarded  by  the  courts  as  no  excuse  but  rather  an  aggra- 
vation of  crime,  and  the  insanity  which  accompanies  a  paroxysm 
of  delirium  tremens,  which  is  held  to  be  a  legitimate  defense 
against  the  penalties  of  the  law.  This  may  be  called  a  moral 
insanity,  but  it  is  primarily  a  physical,  and  secondarily,  an  intel- 


MORAL   INSANITY.  409 

lectual  insanity,  and  is  included  in  our  proposed  definition,  by  the 
presence  of  disease  in  the  brain,  and  the  unconsciousness  of  the 
change  which  has  occurred  in  the  mental  functions,  even  while 
they  are  terrific  and  appalling  to  every  beholder.  Our  profession 
are  at  no  loss  in  identifying  this  form  of  mania-a-potu,  nor  are 
the  courts  and  juries  embarrassed  by  any  conflicting  decisions 
or  precedents." 

The  question  too,  whether  the  punishment  of  those  whose  minds 
are  partially  under  a  cloud,  or  who  have  less  control  over  their 
actions,  resulting  from  their  own  fault,  or  of  original  or  acciden- 
tal organization,  can  be  graduated  according  to  the  circumstances 
of  the  particular  case,  is  well  worthy  of  close  and  careful  con- 
sideration. 

This  view  of  the  difficult  subject  has  already  attracted  the 
attention  of  able  writers.  Dr.  John  Charles  Bucknill,  of  England, 
Mi\  Wharton,  the  author  of  the  "  American  Criminal  Law,"  and 
the  American  Journal  of  Insanity,  all  unite  in  recommending 
the  establishment  of  a  separate  institution  for  the  confinement 
and  special  use  of  that  class  of  alleged  lunatics  guilty  of  crimes, 
who  may  actually  labor  under  some  ameliorating  circumstance, 
where  proper  punishment  may  be  administered,  and  the  necessary 
help  afforded  to  restore  the  person  to  a  healthy  control  of  his 
actions. 

There  are,  doubtless,  many  cases  of  alleged  unsoundness  of 
mind,  perhaps  real,  which  the  courts  can  not  recognize,  that 
demand,  nevertheless,  milder  and  different  treatment  from  that 
measured  out  to  ordinary  criminals,  and  if  such  cases  can  be  dis- 
tinguished, and  the  criminal  propensities  corrected,  and  virtuous 
tendencies  invigorated  by  the  necessary  restraint  and  proper 
punishment,  it  should  be  done.  The  effort,  at  least,  is  worthy  of 
a  patient  trial.  In  almost  every  lunatic  asylum  may  be  found 
those  who  have  come  to  regard  themselves  highly  favored  and 
privileged  above  most  men  on  this  account,  that  they  have  com- 
mitted and  still  may  commit  crime  with  impunity,  where  ordinary 
mortals,  even  children,  would  be  held  to  answer  to  the  law ;  and  the 


410  MEDICAL    EVIDENCE. 

idea  will  spread  like  an  epidemic  among  this  class ;  they  bear 
themselves  as  a  privileged  class,  or  like  potentates.  It  is  possible 
and  probable  that  a  little  wholesome  punishment,  well  regulated, 
when  they  commit  crime,  would,  in  nine  cases  out  of  ten,  prevent 
a  repetition  of  it,  by  reminding  them  that  they  still  belong  to  the 
human  race,  and  that  they  can  and  must  suffer  for  the  violation 
of  the  rights  of  others. 

There  may  be  illusion,  delusion,  or  a  morbid  habit  of  thought, 
without  real  madness.  If  the  illusion  of  sense  is  conjoined  with 
the  loss  or  a  defect  of  the  comparing  power, — of  reasoning  upon 
his  delusion,  he  should  not  be  held  responsible.  But  if  there  is 
only  a  want  of  resolution, — an  inertia  of  thought,  from  which 
cause  comparison  and  consideration  are  not  exercised,  and  the 
illusion  thrown  off,  then  the  individual  is  himself  to  blame,  and 
should  be  held  to  answer  for  what  has  resulted  from  his  own  want 
of  resolution.  If  the  power  to  reason  by  a  special  ellbrt,  on  the 
part  of  the  individual  is  destroyed,  he  will  be  no  longer  respon- 
sible for  his  acts. 

There  being  but  very  few  well-balanced  minds,  it  would  be  a 
dangerous  practice  to  hold,  that  because  a  man  labored  under 
some  degree  of  mental  delusion  or  error  in  his  judgment  in 
regard  to  his  transactions  or  ideas,  he  is  not  a  responsible  agent. 
Both  sanity  and  insanity  may,  in  many  cases,  depend  upon  the 
amount  of  resolution  exerted  by  the  individual  in  reasoning  upon 
the  subject.  If  his  intellectual  machinery  is  quickened  by 
disease,  or  from  any  other  cause,  it  may  still  be  under  the  control 
of  the  will  or  judgment,  though  requiring  a  greater  effort  than 
when  in  a  well-balanced  and  healthy  condition. 

Fear,  is  one  of  the  lowest,  if  not  the  very  lowest  motive  that 
can  influence  the  conduct  of  men.  Still  it  is  brought  to  bear 
upon  the  human  mind  for  the  highest  purposes,  and  doubtless 
with  advantage,  for  after  a  man  is  arrested  in  a  vicious  course 
of  conduct  by  fear,  and  brought  to  stop  and  think,  he  may,  and 
in  most  cases  does,  take  higher  grounds.  First,  he  avoids  the 
wrong  because  of  the  punishment,  then  he  does  right  because  he 


MORAL   INSANITY.  411 

sees  it  is  beneficial  to  him  and  others,  and  finally,  he  is  led  to 
follow  a  virtuous  course  of  life  for  the  sake  of  virtue  itself,  and 
from  a  sense  that  it  is  well  pleasing  to  God. 

This  motive  of  fear  must  be  a  powerful  balance  wheel  in  the 
mental  apparatus  of  the  insane,  especially  those  who  are  capable  of 
arousing  themselves  to  a  correct  train  of  thought  and  reasoning, 
but  from  habit  or  indolence,  are  unwilling  so  to  do.  When  all 
power  of  reasoning  from  cause  to  effect  is  destroyed,  then,  of 
course,  the  motive  of  fear  can  not  be  brought  to  bear ;  but  when 
it  will  influence  conduct  and  prevent  crime,  then  it  should  be 
inflicted  upon  those  of  insane  or  unbalanced  mind,  as  well  as 
upon  the  sane. 

A  man  may  be  insane  from  passion.  A  false  report  may  in- 
cense him  to  a  degree  of  fury ;  he,  however,  believes  it  to  be 
true,  and  he  seeks  his  supposed  enemy  and  inflicts  upon  him 
severe  punishment ; — he  does  not  take  his  life,  because  he  fears 
punishment.  No  love  for  order  or  law  restrains  him,  for  he 
transgresses  law  by  thus  revenging  himself.  But  he  may 
stop  short  of  assassination,  because  of  fear  of  punishment.  The 
madman  does  the  same  thing, — his  own  senses  suggest  to  him 
what  the  former  received  from  a  second  person ;  wherein  do  they 
differ?  If  either  had  taken  the  proper  measures  within  his 
reach  to  ascertain  truth,  then  the  result  might  have  been  avoided. 
Both  knew  that  such  summary  vengeance  is  forbidden  by  law. 
The  former  is  subjected  to  the  degree  of  punishment  his  crime 
deserves,  why  should  not  the  latter  be  ? 

There  is  no  doubt  that  the  high  intellectual  powers  of  man  may 
be  let  down  and  prostituted  by  habit,  by  giving  way  to  passion, 
instead  of  being  properly  restrained, — by  permitting  the  mind 
to  dwell  upon  improper  subjects,  or  take  what  he  well  knows  to- 
be  a  wrong  view  of  things,  from  a  controllable  indisposition  to 
make  the  necessary  efibrt,  until  a  morbid  state  is  superinduced. 
The  stimulus  of  passion,  or  a  steady  fixedness  of  thought  in  a. 
particular  channel,  causes  an  increased  flow  of  blood  to  the  brain  -t 
it  hightens  and  intensifies  the  functions  of  mind,  and  this  may 


412  MEDICAL   EVIDENCE. 

be  continued  until  there  is  actual  change  of  structure,  adapted  to, 
and  brought  about  by  this  passion  or  habit  of  thought  upon  an 
improper  subject,  just  as  the  sexual  appetite  may  be  intensified 
by  habit  of  life  and  thought  until  it  is  beyond  control,  and  the 
victim  sinks  to  a  premature  grave.  Had  the  passion  been 
properly  restrained,  which  was  at  one  time  possible,  then  it  would 
have  been  a  blessing,  and  completely  under  control  through  life. 
The  attributes  of  man,  mental  and  physical,  are  to  be  used  with 
judgment, — if  he  neglects  to  use  them  enough,  they  perish,  and 
atrophy  of  mind  or  body  is  the  result ;  if  he  overtasks  them,  then 
the  vital  forces  are  too  strong  for  the  machinery,  and  plethory, 
apoplexy,  hypertrophy,  or  even  insanity  may  supervene.  But  with 
the  judicious  guidance  of  that  reason  and  judgment  that  make 
man  a  moral  and  responsible  agent,  he  sails  securely  past  these 
dangerous  reefs  and  whirlpools,  enjoying  a  happy,  thrilling,  beau- 
tiful life. 

The  alternative  is  most  generally  with  the  individual  himself, 
whether  a  strong  desire  or  tendency  to  do  a  particular  act,  shall 
be  controlled  and  kept  under,  until  it  disappears  or  subsides  altx> 
gether ;  or  whether  it  shall  be  indulged  in  until  its  influence  has 
increased  and  become  irresistible.  "Inefficiency  of  intellectual 
force"  is  a  convenient  plea  for  the  gratification  of  proscribed  and 
dangerous  indulgences  or  passionate  revenges,  but  it  would  be 
both  puerile  and  dangerous  to  admit  it  in  courts  of  justice. 

That  man  who  has  attained  mature  life,  without  having  ever 
put  the  brakes  upon  his  passions,  will  find  it  no  light  work  to 
check  them  then.  Every  year  it  requires  more  resolution  to 
summon  the  necessary  force,  until  that  which  at  first  had  been 
easy,  becomes  almost  an  impossibility,  and  the  moral,  intelligent 
youth  grows  into  a  passionate  anim  il,  driven  by  the  whirlwind  of 
his  instincts,  his  appetites  and  passions  unbridled  and  intensified. 
Without  disease  of  brain,  except  what  he  bus  himself  produced 
"by  criminal  neglect  of  the  proper  use  of  reason,  he  is  the  slave 
•of  self  indulgence  and  cherished  sins. 

The  child  permitted  to  run  wild,  and  have  the  full  gratification 


MORAL   INSANITY.  41 3 

of  his  wishes  for  a  few  years,  when  finally  checked  up,  rebels, 
against  it,  and  will  not  be  restrained  except  by  a  superior  force  or 
fear;  so  it  is  with  the  brain  or  mind  unaccustomed  to  the  steady 
restraint  of  a  tender,  healthy  conscience  and  enlightened  intel- 
leclual  force;  when  the  latter  attempts  to  assert  its  sway,  it  is  in 
a  measure  powerless. 

Many  insane  criminals  are  educated  and  formed,  by  their 
own  negligence,  in  this  way.  Should  they  not  be  held  to  a  strict 
accountability?  To  say  such  a  one  is  insane,  and  therefore  not 
subject  to  punishment,  is  to  utter  a  dangerous  folly,  and  to  en- 
courage unchecked  passion  and  fatalism. 

Pinel  gives  the  following  case:  "An  only  son,  educated  by  a 
silly  and  indulgent  mother,  was  accustomed  to  give  way  to  all  his 
passions  without  restraint.  As  he  grew  up,  the  violence  of  his 
temper  became  quite  uncontrollable,  and  he  was  constantly  in- 
volved in  quarrels  and  lawsuits.  If  an  animal  offended  him,  he 
instantly  killed  it ;  yet  when  calm  he  was  quite  reasonable,  man- 
aged his  large  estate  with  propriety,  and  was  even  known  to  be 
beneficent  to  the  poor ;  but  one  day,  provoked  to  rage  by  a 
woman,  who  abused  him,  he  threw  her  into  a  well.  On  the  trial 
so  many  witnesses  deposed  to  the  violence  of  his  actions,  that  he 
was  condemned  to  imprisonment  in  a  mad-house." 

This  is  the  history  of  very  many  passionate  men,  who  are 
counted  among  the  sane  until  they  commit  some  great  crime, 
then  their  irregularities  are  at  once  counted  up  and  pronounced 
evidence  of  insanity.  For  the  time  being  the  person  may  be  in 
a  state  of  mania,  or  in  a  condition  bordering  thereon,  but  he  is 
not  the  less  responsible,  for  he  has  wrongfully  permitted  himself 
to  become  so.  If  he  becomes  thus  insane,  permanently  or  con- 
tinually,— not  momentarily, — even  though  he  has  brought  it  on 
himself  wrongfully,  he  is  not  considered  in  law  responsible.  Thus 
insanity  produced  immediately  by  drunkenness  does  not  shield 
the  criminal,  because  he  voluntarily  made  himself  so;  while 
insanity  produced  immediately  by  delirium  tremcns,  affects  and 
relieves  the  responsibility,  because  delirium  tremens  is  not  the 


414  MEDICAL   EVIDENCE. 

intended  result  of  drink,  in  the  same  way  that  drunkenness  is, 
there  being  no  possibility  that  delirium  trcmens  will  be  voluntarily 
generated  in  order  to  afford  a  cloak  for  a  particular  crime.1 

Most  cases  of  insanity  are  undoubtedly  induced  by  some  fault 
of  the  person  himself, — some  infraction  of  the  laws  of  his  being, 
which  he  need  not  have  violated,  yet  being  so  remote  the  law 
does  not  regard  it. 

"A  man  unaccustomed  to  self-control  becomes  occupied  with 
one  thought ;  his  ambition  has  been  disappointed  perhaps,  or  a 
lawsuit  has  perplexed  him,  or  he  has  been  much  employed  in 
some  engrossing  pursuit,  until,  unable  to  regulate  his  thoughts  at 
will,  he  finds  the  one  which  circumstances  have  made  habitual, 
recur  uncalled  for.  An  effort  would  probably  dismiss  it,  for  every 
one  who  has  studied  much,  knows  that  he  has  had  to  dismiss 
many  an  intruding  thought,  and  with  some  effort  too,  if  he 
wished  to  make  progress  in  what  he  has  undertaken;  but  this 
individual  has  never  been  accustomed  to  make  any  such  effort, 
and  he  knows  not  how  to  free  himself  from  the  subject  which 
thus  haunts  him.  If  it  is  an  unpleasant  one  he  is  wearied  and 
worn  by  it;  but  every  day  that  it  is  not  driven  ofl^  it  assumes  a 
greater  power,  for  the. part  of  the  brain  thus  brought  into  action 
is  now  by  habit  rendered  more  unfit  for  use  than  any  other;  he 
has  not  resolution  enough  to  free  himself  from  his  tormentor  by 
a  determined  application  to  something  else  which  would  require 
all  his  attention ;  he  sits  brooding  over  it,  and  when  life  has  thus 
become  irksome,  he  strives  to  terminate  his  discomfort  by  suicide ; 
yet  here  is  no  structural  disease,  and  if  the  man  could  be  per- 
suaded to  exert  himself,  he  might  be  sane.  I  will  give  an 
instance :  The  master  of  a  parish  work-house,  about  thirty  years 
of  age,  was  subjected  frequently  to  groundless  suspicions  of 
peculations.  Being  naturally  a  taciturn,  low-spirited  man,  these 

1  Wlmrton's  Grim.  Law,  135 ;  U.  S.  v.  Drew,  5  Mason  U.  S.  Rep.  23;  U.  S.  v. 
Forbes,  Crabbe's  Rep.  558  ;  Bonnet  v.  State,  Mart.  &  Yerg.  133  ;  U.  S.  v.  Clark,  2 
Cranch,  C.  C.  Hep.  158 ;  11.  v.  Thomas,  8  C.  &  P.  820 ;  1  Rus.  on  Cr.  7  ;  4  Black. 
Com.  26. 


MORAL   INSANITY.  415 

false  accusations  which  involved  his  character,  and  consequently 
the  maintenance  of  his  family,  preyed  upon  his  mind,  and  a  pro- 
found melancholy  was  the  result,  attended  by  the  usual  symptom- 
atic derangement  of  the  digestive  functions,  and  a  constant  appre- 
hension that  he  had  done  something  wrong,  he  did  not  know 
what.  No  assurance  on  the  part  of  those  who  knew  and  esteemed 
him  had  any  effect,  and  finally,  after  some  months  of  melancholy, 
he  attempted  to  destroy  himself.  He  was  then  removed  to  St. 
Luke's  hospital,  whence,  after  a  year  had  elapsed,  he  was  dis- 
charged incurable.  He  was  now  placed  in  a  private  receptacle  of 
the  insane,  and  here  suffered  all  the  misery  which  at  that  time 
pauper  lunatics  were  subject  to.  He  was  visited  at  this  p'ace 
by  a  benevolent  man,  who  seeing  his  state,  immediately  ordered 
him  to  be  removed  into  the  gentleman's  apartments,  and  paid 
for  his  maintenance  there.  In  a  few  months  afterward  he  was 
visited  by  the  clergyman  of  his  parish,  who  on  conversing  with 
him,  considered  him  sane.  The  man  begged  to  be  allowed  to 
rejoin  his  wife  and  family,  and  the  rector,  after  many  difficulties 
and  some  threats  to  the  parish  authorities,  succeeded  in  setting 
him  free.  The  man  from  that  time  was  able  to  maintain  his 
family  by  his  trade  of  shoemaking,  for  if  ever  a  fit  of  melancholy 
came  over  him  his  wife  would  threaten  that  he  should  go  back  to 
the  mad-house,  which  was  sufficient  to  engage  him  to  make  an 
effort  to  resume  his  cheerfulness ;  and  he  remained  to  old  age  a 
sane  man.  Here  the  insanity  had  been  mere  inefficiency  of  the 
intellectual  force.  Placed  in  a  place  of  comparative  ease  his  mind 
had  become  calm ;  the  wish  to  return  to  his  wife  and  family,  and 
the  hope  of  it,  kept  up  by  the  visits  of  benevolent  friends,  did  the 
rest;  for,  be  it  observed,  during  the  whole  time  he  never  felt  him- 
self abandoned.  The  poor  and  the  uneducated  are  the  classes 
which  most  usually  suffer  from  the  inefficiency  of  the  intellectual 
force ;  it  is  among  the  higher  ranks  usually  that  its  misdirection 
is  a  source  of  insanity."1 

1  Barlow   on    Man's    Power   over   himself    to   prevent   or  control    Insanity. 
London,  1843. 


416  MEDICAL   EVIDENCE. 

The  same  author  says  that  Henri  of  Bourbon,  son  of  the  great 
Conde,  at  times  imagined  himself  transformed  into  a  dog,  and 
would  then  bark  violently.  Once  this  notion  seized  him  while  in 
the  king's  presence;  he  then  felt  it  needful  for  him  to  control 
himself,  and  he  did  so ;  for  though  he  turned  to  the  window  and 
made  grimaces  as  if  barking,  he  made  no  noise.  Had  the  king's 
eye  been  on  him,  it  is  probable  that  he  would  have  avoided  the 
grimaces  also. 

If  these  general  views  are  correct,  then  it  behooves  society  for 
its  protection,  and  the  courts  representing  society,  to  constantly 
keep  the  preventive  influence  of  just  and  well-regulated  punish- 
ment before  all  who  may  be  unwilling  to  restrain  an  evil  tendency 
to  commit  crime,  or  to  do  that  which  inevitably  leads  to  it,  until 
they  themselves  believe  they  have  a  right  to  do  so,  because  they 
are  told,  they  are  not  able  to  withstand  the  temptation.  "  They 
can  not  hang  him,"  said  the  inmates  of  York  lunatic  asylum,  when 
a  supposed  lunatic  like  themselves,  Martin,  who  burnt  York 
Minster,  was  being  tried,  "he  is  one  of  ourselves ! " 

The  celebrated  Sickles  case  illustrates  the  tendency  to  drift 
from  the  old  moorings,  that  now  exists  on  this  subject. 

The  distinguished  counsel  who  conducted  the  defense  in  the 
Huntington  case,  defended  Sickles  when  arra'gned  for  killing 
Key,  where  he  also  interposed  the  defense  of  insanity ;  not  calling 
it.  however,  moral  insanity,  but  "jealousy."  He  uses  the  term  : 
"Jealousy  is  the  rage  of  a  man,"  repeatedly,  and  says,  "  it  converts 
him  into  a  phrensy,  in  which  he  is  wholly  irresponsible  for  what 
he  may  do." 

Mr.  Brady  claimed  that  the  immediate  circumstance  attending 
the  seduction  of  Mr.  Sickles'  wife,  and  the  death  of  Key,  were  of 
so  atrocious  a  nature  as  to  overwhelm  the  rnind  of  Sickles  instan- 
taneously, and  thus  render  him  irresponsible  for  the  crime  of 
murder.  He  therefore  drew  up  the  following  propositions,  and 
requested  the  court  to  embody  them  in  its  charge  to  the  jury : 

"1. — If,  from  the  whole  evidence,  the  jury  believe  that  Mr. 
Sickles  committed  the  act,  but  at  the  time  of  doing  so  was  under 


MORAL   INSANITY.  417 

the  influence  of  a  diseased  mind,  and  was  really  unconscious  that 
he  was  committing  a  crime,  he  is  not  in  law  guilty  of  murder. 

2. — If  the  jury  believe  that  from  any  predisposing  cause  the 
prisoner's  mind  was  impaired,  and  at  the  time  of  killing  Mr.  Key 
he  became,  or  was  mentally  incapable  of  governing  himself  in 
reference  to  Mr.  Key,  as  the  debaucher  of  his  wife,  and  at  the 
time  of  committing  said  act,  was,  by  reason  of  such  cause,  un- 
conscious that  he  was  committing  a  crime  as  to  said  Mr.  Key,  he 
is  not  guilty  of  any  offense  whatever. 

3. — It  is  for  the  jury  to  say  what  was  the  state  of  the  prison- 
er's mind  as  to  the  capacity  to  decide  upon  the  criminality  of  the 
particular  act  in  question, — the  homicide, — at  the  moment  it 
occurred,  and  what  was  the  condition  of  the  parties  respectively 
as  to  being  armed  or  not  at  the  same  moment. 

These  are  open  questions  for  the  jury,  as  are  any  other  ques- 
tions which  may  arise  upon  the  consideration  of  the  evidence,  the 
whole  of  which  is  to  be  taken  into  view  by  the  jury. 

4. — The  law  does  not  require  that  the  insanity,  which  absolves 
from  crime,  should  exist  for  any  definite  period,  but  only  that  it 
exists  at  the  moment  when  the  act  occurred  with  which  the 
accused  stands  charged. 

5. — If  the  jury  have  any  doubt  as  to  the  case,  either  in  refer- 
ence to  the  homicide  or  the  question  of  sanity,  Mr.  Sickles  should 
be  acquitted." 

These  propositions  were  argued  at  great  length  by  counsel, 
especially  by  Mr.  Brady,  who  contended  that  the  great  sorrow 
that  had  fallen  upon  Mr.  Sickles,  had,  in  fact,  dethroned  his 
intellect,  and  for  the  moment  he  was  not  accountable  for  what 
he  did.  CRAWFORD,  J.,  charged  as  follows  on  these  propositions : 

"  Gentlemen  of  the  Jury :  The  court  is  asked  to  give  to  the 
jury  certain  instructions,  whether  on  the  part  of  the  United 
States  or  on  the  defense.  The  first  instruction  asked  for  by  the 
United  States,  embodies  the  law  of  this  case  on  the  particular 
branch  of  it  to  which  it  relates,  and  is  granted  with  some  explana- 
tory remarks  as  to  insanity,  with  a  reference  to  which  the  prayer 
27 


418  MEDICAL   EVIDENCE. 

closes.  A  great  English  judge  has  said,  on  the  trial  of  Oxford, 
who  shot  at  the  Queeu  of  England :  '  That  if  the  prisoner  was 
laboring  under  some  controlling  disease  which  was,  in  truth,  the 
acting  power  within  him  which  he  could  not  resist,  then  he  wiil 
not  be  responsible.'  And  again :  ( The  question  is,  whether  he 
was  laboring  under  that  species  of  insanity  which  satisfies  you 
that  he  was  quite  unaware  of  the  nature,  character  and  conse- 
quences of  the  act  he  was  committing,  or  in  other  words.,  whether 
he  was  under  the  influence  of  a  diseased  mind  and  was  really  un- 
conscious at  the  time  he  was  committing  the  act  that  that  was  a 
crime.'  A  man  is  not  to  be  excused  from  responsibility  if  he  has 
capacity  and  reason  sufficient  to  enable  him  to  distinguish  between 
right  and  wrong  as  to  the  particular  act  he  is  doing ;  a  knowledge 
and  consciousness  that  the  act  he  is  doing  is  wrong  and  criminal 
and  will  subject  him  to  punishment  In  order  to  be  responsible, 
he  must  have  sufficient  power  of  memory  to  recollect  the  relation 
in  which  he  stands  to  others,  and  in  which  others  stand  to  him ; 
that  the  act  he  is  doing  is  contrary  to  the  plain  dictates  of  justice 
and  right,  injurious  to  others,  and  a  violation  of  the  dictates  of 
duty.  On  the  contrary,  although  he  may  be  laboring  under  a 
partial  insanity,  if  he  still  understands  the  nature  and  character 
of  his  act  and  its  consequences  j  if  he  has  a  knowledge  that  it  is 
wrong  and  criminal,  and  a  mental  power  sufficient  to  apply  that 
knowledge  to  his  own  case,  and  to  know  that  if  he  does  the  act, 
he  will  do  wrong  and  receive  punishment,  such  partial  insanity 
is  not  sufficient,  to  exempt  him  from  responsibility  for  criminal 
acts. 

Now  we  come  to  those  asked  on  the  part  of  the  defense,  the 
first  of  which  is  in  these  words : 

In  reply  to  the  ninth  instruction,  the  court  responds  thus:  'It 
is  for  the  jury  to  say  what  was  the  state  of  Mr.  Sickles'  mind 
as  to  the  capacity  to  decide  upon  the  criminality  of  the  homicide, 
receiving  the  law  as  given  to  them  in  relation  to  the  degree  of 
insanity,  whether  it  will,  or  will  not,  excuse,  they  (the  jury)  find- 


MORAL   INSANITY.  419 

ing  the  fact  of  the  existence  or  non-existence  of  such  degree  of 
insanity.' 

The  tenth  prayer  reads  thus :  *  The  law  does  not  require  that 
the  insanity,  which  absolves  from  crime,  should  exist  for  any 
definite  period,  but  only  that  it  exist  at  the  moment  when  the  act 
occurred,  with  which  the  accused  stands  charged.' 

That  instruction  is  granted.  The  time  when  the  insanity  is  to 
operate  is  the  moment  when  the  crime  charged  upon  the  party 
was  committed,  if  committed  at  all.  The  eleventh  and  last 
instruction  asked  reads  this  way  : 

*  If  the  jury  have  any  doubt  as  to  the  case,  either  in  refer- 
ence to  the  homicide  or  question  of  sanity,  Mr.  Sickles  should 
be  acquitted.' 

This  instruction,  as  I  mentioned  in  referring  to  prayer  four 
of  the  United  States,  will  be  answered  in  conjunction  with  it. 

It  does  not  appear  to  be  questioned  that  if  a  doubt  is  enter- 
tained by  the  jury  the  prisoner  is  to  have  the  benefit  of  it.  As 
to  the  sanity  or  insanity  of  the  prisoner  at  the  moment  of  com- 
mitting the  act  charged,  it  is  argued  by  the  United  States  that 
every  man  being  presumed  to  be  sane,  the  presumption  must  be 
overcome  by  evidence  satisfactory  to  the  jury,  that  he  was  insane 
when  the  deed  was  done. 

This  is  not  the  first  time  this  inquiry  has  engaged  my  attention. 
The  point  was  made  and  decided  at  the  June  Term,  1858,  in 
•case  of  the  United  States  v.  Devi  ins,  when  the  court  gave  the 
following  opinion,  which  I  read  from  my  notes  of  the  trial :  This 
prayer  is  based  on  the  idea  that  the  jury  must  be  satisfied,  beyond 
.all  reasonable  doubt,  of  the  insanity  of  the  party  for  whom  the 
defense  is  set  up ;  precisely  as  the  United  States  are  bound  to 
prove  the  guilt  of  a  defendant  to  warrant  a  conviction.  I  am 
well  aware,  and  it  has  appeared  on  this  argument,  that  it  has  been 
held  by  a  court  of  high  rank  and  reputation,  that  there  must  be 
a  preponderance  of  evidence  in  favor  of  the  defense  of  insanity 
to  overcome  the  presumption  of  law,  that  every  killing  is  a  mur- 
der ;  and  that  the  same  court  has  said  that  if  there  is  an  equili- 


420  MEDICAL   EVIDENCE. 

brium,  including,  I  suppose,  the  presumption  mentioned  of  evi- 
dence, the  presumption  of  the  defendant's  innocence,  makes  the 
preponderance  in  his  favor. 

Whether  a  man  is  insane  or  not,  is  a  matter  of  fact ;  what 
degree  of  insanity  will  relieve  him  from  responsibility  is  a  matter 
of  law,  the  jury  finding  the  fact  of  the  'degree  too.  Under  the 
instruction  of  the  court,  murder  can  be  committed  only  by  a 
sane  man.  Everybody  is  presumed  to  be  sane  who  is  charged 
with  a  crime,  but  when  evidence  is  adduced  that  a  prisoner  is  in- 
sane, and  conflicting  testimony  makes  a  question  for  the  jury, 
they  are  to  decide  it  like  every  other  matter  of  fact,  and  if  thvy 
should  say  or  conclude  that  there  is  uncertainty,  that  they  can 
not  determine  whether  the  defendant  was  or  is  not  so  insane  as 
to  protect  him,  how  can  they  render  a  verdict  that  a  sane  man 
perpetrated  the  crime,  and  that  no  other  can  ? 

Nor  is  this  plain  view  of  the  question  unsupported  by  authority. 
In  the  case  of  the  Queen  v.  Ley,  in  1840,  Lewins  C.  C.,  p. 
239,  on  a  preliminary  trial  to  ascertain  whether  a  defendant  was 
sufficiently  sane  to  go  before  a  petit  jury  on  an  indictment, 
HULLOCK,  B.,  said  to  the  jury:  'If  there  be  a  doubt  as  to  the 
prisoner's  sanity,  and  the  surgeon  says  it  is  doubtful,  you  can 
not  say  he  is  in  a  fit  state  to  be  put  on  trial.'  This  opinion  was 
approved  in  the  People  v.  Freemen,  Vol.  4  Denio's  Report,  p.  9^ 
This  is  a  strong  case,  (or  the  witness  did  not  say  the  prisoner  was 
insane,  but  only  that  it  was  doubtful  whether  it  was  so  or  not. 
The  humane,  and,  I  will  add,  just  doctrine,  that  a  reasonable 
doubt  should  avail  a  prisoner,  belongs  to  a  defense  of  insanity,  as 
much,  in  my  opinion,  as  to  any  other  matter  of  fact.  I  believe, 
gentlemen,  that  that  answers  all  the  questions." 

In  the  Huntington  case,  a  wild,  reckless  and  criminal  spirit  of 
speculation  was  urged  as  one  f>rm  of  insanity,  and  should  be  a 
defense  and  turn  aside  the  edge  of  the  law;  while  in  the  Sickles 
case,  the  same  able  lawyer  labored  with  great  skill  to  show  that 
'•  jealousy  is  the  rage  of  man,"  that  "it  converts  him  into  a  phrensy, 
in  which  he  is  wholly  irresponsible  for  what  he  may  do." 


MORAL    INSANITY.  421 

In  the  latter  case  it  is  to  be  remarked,  and  to  the  honor  of 
the  medical  profession,  that  the  defense  received  no  assistance 
from  distinguished  medical  men. 

Medical  witnesses  should  weigh  well  the  effect  of  their  evi- 
dence on  the  question  of  ins  mity  when  it  is  of  a  speculative 
character.  They  should  remember  that  it  may  be,  in  the  hands 
of  able  criminal  lawyers,  a  powerful  agency  for  shielding  crime, 
through  the  intervention  of  a  humane  and  kind-hearted  jury. 

If  the  defense  in  the  cases  of  ITuntington  and  Sickles  had 
Succeeded, — and  we  do  not  know  how  far  this  element  in  the  de- 
fense of  Sickles  influenced  the  jury  that  acquitted  him, — then 
•would  we  have  the  propositions  established,  that  a  long  course  of 
vice  and  reckless  speculation,  based  upon  forgery,  and  that  sudden 
vi;>  cut  passion,  resulting  in  homicide,  are  each  evidences  of  in- 
s-i.iity,  and  a  legitimate  defense  for  the  accused,  thus  overturn' ng 
the  very  foundations  of  civil  :md  religious  society. 

NOTE—  "  If  a  man  exhibit  eccentricity  of  character,  if  he  possess  peculiarities  of 
disposition — they  may  be  ridiculous,  absurd,  iu  bad  taste,  offensive  or  disgusting  to 
those  around  them — and  yet  otherwise  evinces  no  disturbance  of  the  intellect, 
conducts  his  business  with  lair  intelligence,  he  is  sane;  but  if  he  commit  a 
crime,  and  especially  the  crime  of  murder,  these  eccentricities  prove  him  insane. 
In  other  words  he  is  sane  up  to  the  very  moment  of  perpetrating  the  crime,  then 
he  becomes  insane,  and  the  insanity  passes  off  as  soon  as  the  crime  is  over. 

Although  some  physicians  and  medical  writers  have  surrendered  their  judg- 
ment to  wild  theory,  and  bidden  farewell  to  common  sense,  and  thereby  accommo- 
dated themselves  to  the  varying  exigencies  of  the  defense  of  murderers,  yet  the 
law  upon  the  subject  of  insanity  is  clear  and  unmistakable.  These  extreme  views 
and  abburd  theories  of  medical  enthusiasts  are  not  countenanced  in  law.  The 
law  on  this  subject  is  founded  upon  intelligence,  upon  common  sense,  upon  the 
experience  of  mankind. 

For  the  purpose  of  showing  to  the  Court  and  to  you,  Gentlamen,  that  I  am 
correct  in  the  principles  which  1  shall  seek  to  apply  to  this  case,  I  will  cite  the 
best  legal  authorities  upon  the  subject  of  medical  jurisprudence.  Elwell,  one  of 
the  very  best  writers  on  medical  jurisprudence,  at  pages  352,412,  413.  and  else- 
wi.ere,  lays  down  the  law  exactly.  It  is  high  authority."  Hon.  Heury  L. 
Clinton.  Trial  ot  Buckhout,  Coun,  of  Oyer  Teruiiner,  N.Y. 

1st.  That  brooding  over  a  single  idea  until  it  obtains  comple  mastery  over 
the  mind -giving  way  to  a  spirit  of  revenge,  until  one  is  hurried  on  by  aii  appar- 
ently irresistible  impulse  to  the  commission  of  deeds  of  violence — does  not 
exempt  one  from  responsibility  to  the  law,  or  furnish  any  excuse  whatever  for 
the  perpetration  of  crime 

2d.  An  absence — an  apparent  absence— of  motive  for  acts  of  violence  com- 
mitted does  not  constitute  insanity. 

3d.  Eccentricities,  no  matter  how  ridiculous  or  extraordinary;  erroroneous 
views,  however  absurd  or  unreasonable ;  unaccountable  fancies,  do  not  prove 
insanity,  but  are  all  consistent  with  that  state  of  miud'or  mental  condition  which 
the  law  calls  sanity.  Jl>. 


CHAPTER   XXX, 

OPINION'S  OF  LAYMEN,  AS  EVIDENCE  UPON  ALLEGED  INSANITY. 

/ 

AN  unsettled  question  of  much  importance,  connected  with 
the  Medical  Evidence  of  insanity,  is  whether  or  not  the  testi- 
mony of  those  who  are  not  medical  experts  should  be  received  in 
determining  the  mental  character  of  the  alleged  insane  party. 

Able  medical  and  legal  authority  is  found  on  both  sides  of  the 
question. 

While  it  should  not  be  denied  that  the  learned  and  experienced, 
like  Drs.  Ray,  Gilman,  Coventry  and  Woodward,  can  determine 
close  questions  of  mental  aberration  more  correctly  and  certainly,, 
than  any  other  persons  of  less  experience,  yet  there  are  but  few 
such  men,  and  if  they  were  more  numerous,  there  is  no  good 
reason  why  these  questions  should  be  submitted  to  them  alone. 

A  medical  man  not  connected  with  insane  asylums,  is  in 
general  but  little,  if  any  better  qualified  to  give  an  opinion  upon 
insanity  than  the  intelligent  unprofessional  man.  He  may  not 
be  as  well  qualified  to  judge  of  the  condition  of  the  alleged 
insane  person,  as  one  who  is  .acquainted  with  the  previous  history 
of  the  party,  and  who  can  compare  his  present  condition  with 
his  previous  acts  and  character.  Hence  the  folly  of  shutting  out 
all  evidence  but  that  of  experts  on  the  trial  of  these  cases. 

The  distinguished  American  editor  of  the  Cyclopedia  of  Practi- 
cal Medicine,  upon  this  point,  says : 

"  In  regard  to  the  nature  of  the  testimony  relied  upon  in  cases 
of  insanity,  and  the  mode  of  judging  of  the  same,  there  is  much 
room  for  animadversion.  Too  great  weight  appears  to  be  given 
to  medical  testimony  in  such  cases.  It  has  always  been  the 

(  422  ) 


OPINIONS    OF    LAYMEN,    AS    EVIDENCE.  423 

expressed  conviction  of  the  writer,  that  medical  men  are  no  better 
judges  of  the  existence  of  mental  alienation,  than  well-informed 
and  discriminating  individuals  not  of  the  profession.  The  only 
advantage,  at  least,  which  they  can  be  presumed  to  have,  is  from 
the  constant  habits  of  observation  and  discrimination,  which  the 
practical  exercise  of  their  profession  requires.  Yet,  for  no  other 
reason  than  that  they  belong  to  the  medical  profession,  inferior 
men,  whoso  judgments  on  any  other  subject  would  be  contemned, 
are  often  called  upon  to  decide  and  establish  the  existence  or 
non-existence  of  a  mental  condition  which  demands  the  most 
careful  and  rigid  scrutiny." 

An  able  writer  in  the  British  and  Foreign  Medical  Review, 
thinks  it  "  essential  for  justice  to  abolish  medical  testimony  as  it 
is  at  present  given  on  trials  for  crime,  when  insanity  is  the  plea ; 
and  that  questions  of  this  important  nature  should  be  referred  to 
a  board  of  twelve  or  more  competent  men.  The  state  of  mind 
of  a  person  accused  of  crime,  should  not  be  left  to  be  decided  by 
those  members  of  the  profession  whom  the  prisoner  or  his  friends 
may  select,  for  their  known  support  of  his  case.  As  to  the  ques- 
tions of  his  responsibility  and  punishment,  these  should  be  intrusted 
to  the  authorities  of  law.  The  whole  .subject  is  surrounded  \vi.h 
difficulties,  and  hence  much  room  is  left  for  the  ingenuity  of 
counsel,  to  act  upon  a  jury  generally  composed  of  men  who  r.re 
eminently  unqualified  for  forming  any  correct  judgment  on  the 
intricate  subject  submitted  to  their  decision." 

Dr.  Meredith  Reese  adds  the  weight  of  his  testimony  to  the 
above  views.  He  says:  "Many  medical  men  announce  their 
opinions  as  to  the  sanity  or  insanity  of  a  defendant,  as  an  oracle, 
and  with  a  confidence  proportionate  to  their  ignorance.  And 
when  called  upon  by  the  ministers  of  the  law  for  the  grounds  or 
reasons  upon  which  their  opinion  is  based,  they  are  '  wiser  than 
twenty  men  who  can  give  a  reason,'  while  they  reply, '  no  definition 
is  possible,  no  test  is  reliable,  but  your  right  and  wrong  theory 
is  arrant  nonsense.'  We  doctors  are  the  judges,  and  *  wisdom  will 
die  with  us.'  Verily,  we  assume  that  another  Daniel  has  come 


424  MEDICAL   EVIDENCE. 

to  judgment.  That  our  brethren  of  the  bench  and  bar  should 
smile  at  our  ludicrous  assumption  of  infallibility,  and  that  a 
common-sense  jury  should  ignore  such  incoherent  testimony, 
and  even  impute  '  moral  insanity '  to  such  doctors,  is  not  at  all 
marvc  1  ous."1 

^Sir  Benjamin  Brodie  says :  "  Allow  me  to  add,  that  it  is  a 
great  mistake  to  suppose  that  this  is  a  question  which  can  be 
determined  only  by  medical  practitioners.  Any  one  of  plain, 
common  sense,  and  having  a  fair  knowledge  of  human  nature, 
who  will  give  it  due  consideration,  is  competent  to  form  an  opinion 
on  it ;  and  it  belongs  fully  as  much  to  those  whose  office  it  is  to 
administer  the  law,  as  it  does  to  the  medical  profession."2 

How  are  most  cases  of  insanity  determined  ?  We  have  seen 
there  are  no  purely  scientific  or  medical  tests.  There  being,  there- 
fore, no  scientific  standard  by  which  the  act  in  controversy  can 
be  determined  positively,  a  responsible  or  irresponsible  one,  the 
question  must  be  determined  by  weighing  well  all  the  attending 
circumstances  connected  with  the  act, — the  previous  history  of 
the  individual, — his  character  and  conduct  in  early  life,  and  mature 
manhood, — the  causes  that  may  have  incited  him  to  the  alleged 
insane  act, — the  manner  of  its  execution, — the  conduct  before 
and  after  the  act, — the  eccentricities  of  character  and  conduct, — 
peculiar  opinions, — in  what  respect  the  individual  differs,  not 
with  all  others,  but  with  himself, — his  former  self, — whether  the 
careful,  prudent,  and  cautious  man,  suddenly  becomes  a  careless, 
visionary  speculator,  squandering  his  property, — whether  the  fond 
and  affectionate  parent  becomes  tyrannical  and  morose  without 
any  known  adequate  cause, — whether  a  previous  blameless  life  is 
suddenly  changed  into  one  of  crime,  apparently  without  any  motive, 
— if  he  assigns  a  reason  for  his  conduct,  whether  it  is  not  wholly 
extravagant  and  insufficient ; — these  considerations  and  very  many 


1  Pamphlet  Report  on  Moral  Insanity,  in  its  Relations  to  Medical  Jurispru- 
dence, 16. 

2  Mind  and  Matter ;  or,  Physiological  Inquiries,  105. 


OPINIONS   OF    LAYMEN,    AS   EVIDENCE.  425 

others,  enter  largely  into  the  determination  as  to  insanity  or 
sanity  ;  and  who  arc  better  able  to  mark  and  weigh  these  elements, 
than  those  persons  nearest  and  best  acquainted  with  the  alleged 
insane  person, — having  the  best  opportunity  of  knowing  his 
history, — the  changes  in  it,  if  any, — than  his  family,  and  those 
clear-headed  business  men  with  whom  he  has  dealt,  and  who  have 
observed  him  closely,  perhaps  for  years.  Yet  these  persons,  who 
are  of  all  others,  often  best  qualified  to  decide  these  questions,  are 
not  competent  witnesses  on  insanity ;  and  its  solution  is  handed 
over  to  a  medical  man,  who  perhaps,  sees  the  party  for  the  first 
time  in  court,  or  a  half  an  hour  in  jail. 

Haslam  and  Shellbrd  remark,  "  that  it  has  been  questioned 
whether  medical  evidence  to  prove  insanity,  be  not  inferior  to  that 
of  other  people  who  may  have  had  opportunities  of  observing  the 
individuals,  when  the  same  opportunities  have  not  been  in  the 
power  of  the  practitioner." 

This  question  has  generally  divided  the  bench,  when  it  has  been 
called  to  pass  upon  it.  It  was  fully  discussed  and  considered  in 
the  Supreme  Court  of  New  York  in  an  important  case,1  and  also 
in  a  late  case  in  the  Court  of  Appeals  of  the  same  State.3 
These  are  undoubtedly  the  leading  cases  upon  this  point  in  this 
country. 

In  the  case  of  Culver  v.  Haslem,  the  majority  of  the  court 
held,  that  any  one  intimately  acquainted  with  the  alleged  insane 
person,  though  not  a  professional  man,  might  express  an  opinion 
upon  the  question.  The  court  says : 

"Apart  from  the  difficulty  of  restraining  a  witness  from  inter- 
mingling his  opinions  with  his  testimony,  in  questions  of  this 
kind,  there  are  strong  reasons  why  he  should  be  permitted  to  do 
so,  when  he  discloses  the  facts  and  circumstances  within  his  knowl- 
edge, upon  which  they  are  founded.  HU  man  language  is  imperfect ; 
and  it  is  often  impossible  to  describe,  in  an  intelligible  manner,  the 


1  Culver  v.  Haslem,  7  Barb.  314. 

2  Dewitt  v.  Barley  &  Schoonmaker,  5  Selden,  371. 


426  MEDICAL   EVIDENCE. 

operations  of  the  mind  of  another.  We  learn  its  condition  only 
by  its  manifestations,  and  these  are  indicated,  not  only  by  articu- 
late words,  but  by  signs,  gestures,  conduct,  the  expression  of  th& 
countenance,  and  the  whole  action  of  the  man.  Nor  is  there  any 
danger  that  a  court  and  jury  will  be  misled  by  such  opinions 
when  the  reasons  for  them  are  disclosed.  The  force  and  value 
of  opinions  depend  upon  the  general  intelligence  of  the  witness, 
the  grounds  on  which  he  bases  it,  the  opportunities  he  has  had 
for  accurate  and  full  observation,  and  his  entire  freedom  from 
bias  or  interest.  I  agree  with  Judge  Cowen,  in  Norman  v.  Wells, 
that  causes  are,  in  general,  better  tried  without  them,  and  I  con- 
cur with  him,  the  Chancellor,  Senator  Verplanck  and  Judge  Bar- 
culo,  that  mere  opinions  of  an  ordinary  witness,  unless  supported 
by  good  reasons,  and  founded  on  facts,  are  entitled  to  no  regard. 
The  question  under  consideration,  is  not  what  weight  should  be 
given  to  such  opinions,  but  whether  they  are  competent.  The 
learned  judge  correctly  instructed  the  jury  that  they  were  en- 
titled to  but  little  tveight.  I  think  he  was  right  also  in  holding 
them  admissible,  with  the  qualification  under  which  they  were 
received." 

This  decision  of  the  Supreme  Court  of  New  York  was  re- 
versed by  the  Court  of  Appeals,  in  the  case  of  Dewitt  v.  Barley 
&  Schooumaker,  when  the  whole  question  was  again  ably  dis- 
cussed by  the  counsel  and  court.  The  decision  however  of  the 
court,  is  essentially  shaken  by  the  able  dissenting  opinion  of  a 
large  minority,  among  whom  is  Mr.  Justice  Denio.  He  says : 

"  In  a  case  of  doubtful  competency,  witnesses  will  ordinarily 
be  produced  who  knew  the  individual  when  in  health,  who  have 
observed  the  changes  which  have  since  taken  place,  and  have 
incidentally  tested  his  memory  and  judgment  in  a  great  number 
and  variety  of  instances  in  the  relations  of  social  and  domestic 
life,  the  particulars  of  which  have  been  forgotten,  though  the 
impression  caused  by  them  remains  upon  the  mind  of  the  wit- 
ness. Such  a  witness,  if  possessed  of  discrimination  and  judg- 
ment, will  usually  have  formed  an  opinion  of  considerable  value 


OPINIONS    OF   LAYMEN,  AS   EVIDENCE.  427 

as  to  the  capacity  of  the  party  for  doing  an  act  requiring  memory 
and  judgment.  But  it  would  scarcely  be  possible  for  him  to  lay 
before  the  jury  all,  or  the  greater  part  of  the  circumstances  upon 
which  his  opinion  is  based.  The  judgment  which  we  form  as  to 
the  mental  condition  of  an  acquaintance,  depends  as  much  upon 
his  looks  and  gestures  connected  with  his  conversation  and  con- 
duct, as  upon  the  words  and  actions  themselves,  and  yet  it 
would  be  a  hopeless  task  for  the  most  gifted  person  to  clothe  in 
language  all  the  minute  particulars,  with  their  necessary  accom- 
paniments and  qualifications,  which  have  led  to  the  conclusion  which 
he  lias  formed.  I  am  of  the  opinion  that  the  question  of  testamen- 
tary competency,  or  what  is  the  same  thing,  of  mental  capacity  to 
do  an  act  requiring  the  faculty  of  judgment  and  memory,  does, 
upon  principle,  form  a  well-defined  exception  to  the  rule  which 
excludes  the  mere  opinions  of  the  witness;  and  unless  the  point 
has  been  otherwise  settled  by  adjudication  which  all  are  bound  to 
regard,  the  ruling;  in  this  caso  should  be  sustained. 

O  7  O 

In  testamentary  cases  in  England,  I  am  satisfied  that  it  is  the 
universal  practice  of  the  Spiritual  Courts  to  receive  the  opinions 
of  witnesses  who  are  acquainted  with,  or  have  seen  and  conversed 
with  the  alleged  testator  as  to  his  competency.  In  White  v. 
Driver,  which  was  the  case  of  a  contested  will,  Sir  John  Nicholl 
laid  great  stress  upon,  if  he  did  not  wholly  decide  the  cause,  in 
consequence  of  the  favorable  opinion  of  a  friend  of  the  deceased, 
and  of  his  clergyman,  solicitors,  nurses  and  apothecaries,  against 
the  pretty  strong  testimony  on  the  other  side.  Kinleside  v. 
Harrison,  arose  upon  the  probate  of  the  will  and  codicil  of  a 
person  ninety  years  old.  A  great  number  of  witnesses  were 
examined  upon  the  question  of  the  capacity  of  the  deceased,  who 
freely  gave  their  opinions  upon  one  side  or  the  other,  differing 
very  much  in  their  conclusions.  Sir  John  Nicholl  commenced 
his  elaborate  judgment  by  some  remarks  upon  the  difficulties  of 
cases  of  this  nature.  In  the  first  place,  he  said : 

'It  may  be  observed  that  a  large  portion  of  evidence  to- 
capacity  is  evidence  of  mere  opihion,  and  to  matter  of  opinion. 


428  MEDICAL   EVIDENCE. 

mankind  differ  even  to  a  proverb.'  Further  on,  he  observes, 
that  discrepancy  would  arise;  '  first,  from  the  different  abilities  of 
witnesses  to  form  such  opinions ;  secondly,  from  their  different 
opportunities  of  seeing  the  person;  and  thirdly,  from  the  differ- 
ent state  and  condition  of  the  testator's  mind  at  different  times. 
It  is  certainly  true,  that  the  study  of  the  human  rnind  is  an 
abstruse  science ;  the  different  lines  and  traits  of  the  understand- 
ing are  matters  which  attract  the  notice  and  consideration  of  the 
intelligent.  Ignorant  persons  and  enlightened  ones,  will  form 
different  opinions  upon  subjects  of  this  kind ;  ignorant  persons, 
servants,  and  those  in  their  condition,  who  form  their  judgments 
on  the  conversations  of  the  kitchen  circle,  are  very  apt  to  form 
erroneous  opinions  on  matters  of  this  sort ;  and  this  will  be  the 
case  even  without  throwing  in  the  additional  ingredient  which 
takes  place  in  those  circles,  the  loose  suspicions  and  prejudices  by 
which  their  judgments  are  often  biased  and  carried  out  of  their 
true  course.  In  the  next  place,  from  the  different  opportunities 
persons  have  of  judging,  they  will  form  different  opinions;  per- 
sons who  see  the  testator  only  occasionally,  will  form  different 
opinions  from  those  who  have  better  opportunities  of  judging. 
We  know  that  little  appearances,  occurring  in  this  way,  are 
extremely  fallacious,  yet  we  often  find  occasional  observers 
depose  with  great  confidence.  It  frequently  happens  that  the 
most  ignorant  are  the  most  confident.  This  kind  of  opinion  is 
still  more  various  when  the  testator's  capacity  is  fluctuating, 
when  he  is  sometimes  better  and  sometimes  worse;  and  this  is 
generally  the  case  with  persons  laboring  under  old  age  or  other 
infirmities ;  it  is  so,  even  when  there  is  no  special  attack  occasion- 
ally operating ;  accidental  cold  or  other  indisposition  often  ren- 
ders an  old,  infirm  person  worse  one  day  than  another.  After  a 
good  or  bad  night,  a  person  will  be  alert  or  dull ;  so,  after  a 
night's  sleep,  a  person  may  be  active  and  capable  of  consider- 
able exertion,  even  in  matters  of  business,  who,  in  the  afternoon, 
when  the  process  of  digestion  is  going  on,  shall  appear  drowsy 
-and  stupid,  and  not  able  to  rouse  himself  into  action.  The 


OPINIONS    OF   LAYMEN,    AS    EVIDENCE.  429 

humor  of  a  testator  will  sometimes  make  him  appear  almost  fatu- 
ous, or  induce  him  to  rouse  himself  into  exertion  as  the  occasion 
is  either  interesting  or  disagreeable  to  his  inclinations.  Now, 
these  considerations,  while  they  tend  to  reconcile  the  apparent 
contradictions  of  witnesses,  render  it  necessary  for  the  court  to 
weigh  such  evidence  with  great  attention ;  to  rely  but  little  upon 
mere  opinions ;  to  look  at  the  ground  upon  which  opinions  are 
formed,  and  to  be  guided  in  our  judgment  by  facts  proved  and 
by  acts  done,  rather  than  by  the  judgment  of  others.'  I  have 
referred  to  these  remarks  so  much  at  large,  depreciatory  though 
they  are  of  the  kind  of  testimony  in  question,  in  order  to  show, 
that  though  opinions  are  entitled  to  but  little  confidence,  except 
when  connected  with  and  supported  by  facts,  yet  that  it  was  not 
thought  of,  that  they  might  be  excluded  altogether  as  incompe- 
tent. To  show  that  opinions  are  habitually  received  and  relied 
on  in  these  courts,  when  connected  with  facts,  I  might  refer  to 
many  decisions.  The  point  does  not  seem  to  have  been  distinctly 
decided  in  the  courts  of  this  State,  if  we  except  the  recent  case 
in  the  Supreme  Court  hereafter  noticed.  In  Jackson  v .  King, 
where  a  conveyance  was  attacked  for  the  alleged  incapacity  of 
the  grantor,  unprofessional  witnesses,  who  were  acquainted  with 
him,  were  examined  as  to  their  opinions  respecting  the  soundness 
of  his  mind,  without  so  far  as  it  appears  any  objection  having 
been  taken.  Those  who  testified  for  the  plaintiflj  based  their 
opinions  upon  specific  facts,  which  were  held  by  the  court  not 
sufficient  to  warrant  the  opinions  which  they  expressed.  In 
Clark  v.  Fisher,  which  was  an  appeal  from  a  decree  of  the  Surro- 
gate, admitting  a  will  to  probate,  testimony  of  the  kind  under 
consideration  had  been  received.  In  commenting  upon  it  the 
Chancellor,  I  think,  recognizes  the  rule  as  contended  for  by  the 
respondents  in  this  case.  He  says,  in  commenting  upon  the 
case,  that  'the  evidence  of  capacity,  in  most  contested  cases, 
consists  in  the  opinions  of  witnesses,  sometimes  with  and  fre- 
quently without  the  particular  facts  on  which  such  opinions  are 
founded.'  After  adverting  to  the  unsatisfactory  character  of 


430  MEDICAL    EVIDENCE. 

opinions  generally,  he  adds;  'It  is  for  this  reason  that  opinions 
of  witnesses  are  never  received  in  evidence  when  all  the  facts 
on  which  such  opinions  are  founded  can  be  ascertained  and  made 
intelligible  to  the  court  and  jury.  And  when  the  opinions  of 
witnesses,  from  the  necessity  of  the  case,  are  received  as  evidence, 
the  weight  of  testimony  will  not  depend  so  much  upon  the  number, 
-as  upon  the  intelligence  of  the  witnesses,  and  their  capacity  to 
form  correct  opinions,  their  means  of  information,  the  unpreju- 
diced state  of  their  minds,  and  the  nature  of  the  facts  testified 
to  in  support  of  these  opinions.'  The  case  of  Culver  v.  Ilaslam, 
contains  an  able  examination  of  the  precise  question  now  under 
consideration ;  and  the  conclusion  arrived  at  by  a  majority  of 
the  court,  that  the  opinion  of  a  witness  acquainted  with  the  indi- 
vidual whose  capacity  is  in  question,  in  connection  with  those 
facts  and  circumstances  within  the  knowledge  of  the  witness,  is 
admissible,  meets  with  my  entire  assent." 

Thus  the  question  stands  in  New  York, — the  Court  of  Appeals 
having  decided  with  a  heavy  dissenting  sentiment,  that  none  but 
professional  witnesses  are  competent  to  testify  on  the  subject  of 
insanity,  while  the  Supreme  Court  admits  the  opinions  of  laymen, 
— or  did,  before  the  Court  of  Appeals  passed  upon  it.  The  ques- 
tion can  not,  therefore,  be  considered  as  settled,  even  in  that  State. 

In  Pennsylvania,  the  point  seems  to  be  settled  in  favor  of 
admitting  the  testimony  of  non-professional  witnesses.  In  the 
<3ase  of  Rambler  v.  Tryan,1  the  right  of  the  defendant  depended 
upon  the  validity  of  a  will,  which  was  impeached  by  the  plaintiff 
on  the  ground  of  the  imbecility  of  mind  of  the  alleged  testator; 
and  witnesses  who  had  known  him  intimately  from  his  childhood 
to  his  death,  were  offered  to  prove  certain  facts  tending  to  show 
an  extraordinary  dul  ness  of  understanding,  followed  up  by  the 
opinions  of  the  witnesses,  founded  on  these  facts,  that  he  was 
incapable,  from  defect  of  understanding,  to  make  a  will.  The 
•court  admitted  the  evidence,  and  the  defendent  excepted.  In 

1  7  Scrg.  &  Rawlc,  90. 


OPINIONS    OF    LAYMEN,    AS   EVIDENCE.  431 

reviewing  this  ruling,  the  court  said  they  did  not  know  how 
otherwise  the  alleged  imbecility  of  mind  could  be  proved,  than 
by  the  evidence  of  those  who  grew  up  with  him,  who  marked  his 
conduct  in  infancy,  in  the  prime  of  life,  and  in  his  decline.  The 
opinion  of  witnesses,  they  said,  without  stating  the  grounds  of 
such  opinions,  ought  not  to  be  received.  But  when  they  state 
facts  indicative  of  want  of  common  intellect,  their  opinion  is  always 
received.  In  Wogan  v.  Small,1  on  the  trial  of  an  issue  of  de- 
viscwit  vel  non,  the  plaintiff  was  allowed  to  ask  a  witness,  sworn 
in  his  behalf,  whether,  from  his  actual  knowledge  of  Peter  Bipe, 
the  supposed  testator,  he  considered  him  unfit  to  make  a  will, 
and  a  motion  for  a  new  trial  for  an  alleged  error  in  that  respect 
was  denied. 

The  same  view  has  been  taken  of  the  question,  in  Connecticut. 
An  action  on  a  promissory  note  was  defended  on  the  ground  of 
the  insanity  of  the  defendant.  On  the  trial,  the  court  rejected 
the  mere  opinion  of  the  witnesses,  but  permitted  them  to  state 
their  opinions  in  connection  with  facts  on  which  such  opinions 
were  founded,  that  there  was  a  continued  and  uninterrupted  lunacy 
and  total  want  of  understanding  of  the  defendant,  commencing  at 
a  time  prior  to,  and  continuous  at,  and  after  the  execution  of  the 
note.  The  opinion  of  the  court  upon  the  exceptions,  was  given 
by  Chief-Justice  Hosmer,  who  declared  that  the  judge,  at  the  trial, 
"  discriminated  soundly  and  legally,"  and  that  the  holding  was 
sanctioned  by  the  usual  practice  of  courts  in  such  cases.2  In 
the  subsequent  case  of  Kinne  v.  Kinne,  similar  testimony  was 
received,  upon  which  the  court  remarked,  that  upon  the  facts 
stated  in  support  of  the  opinions,  the  triers  would  draw  the  infer- 
ence as  to  the  state  of  the  testator's  mind. 

In  Indiana,  the  rule  is  stated  to  be,  that  the  opinions  of  unpro- 
fessional witnesses  may  be  taken  as  to  the  sanity  of  a  testator 
or  grantor,  but  the  facts  upon  which  the  opinions  are  founded 


1 11  Serg.  &  Rawle,  141. 

2  Grant  v.  Thompson,  4  Conn.  203. 


432  MEDICAL   EVIDENCE. 

must  also  be  stated.1  It  has  been  so  held  in  Tennessee,  North 
Carolina  and  Ohio.2 

The  Supreme  Court  of  Ohio,  in  passing  upon  this  point,  said : 
*'  It  may  be  impossible  for  a  physician,  who  has  not  become 
familiar  by  experience,  with  some  of  the  peculiar,  indefinable, 
but  certain  indicia  of  insanity,  in  a  case  where  it  is  feigned,  to 
determine  that  it  is  so,  without  watching  the  patient  by  night, 
as  well  as  by  day,  for  some  time,  and  when  he  does  not  know 
th:it  he  is  watched,  to  see  whether  he  can  resist  hunger,  cold  and 
sleep,  and  whether  his  conduct  affords  any  sure  test  to  distinguish 
feigned  appearances,  assumed  for  a  particular  purpose,  from  a 
case  of  real  disordered  intellect.  It  is  idle  to  suppose  that  none 
but  medical  men  can  do  this ;  and  as  idle  to  assume  that,  when 
done  by  an  intelligent  observer,  his  conclusions  would  be  worth- 
less. Doubtless  an  opinion  formed  by  a  person  professionally 
conversant  with  disease,  upon  the  same  observations,  .would  be  the 
most  reliable ;  but  if  formed  upon  any  relation  of  the  facts  which 
the  observer  would  be  able  to  give,  it  would  be  difficult  to  say,  in 
many  cases,  that  it  would  be  the  safest.  A  careful  daily  observer 
of  a  person  feigning  madness,  would  witness  innumerable  acts, 
motions  and  expressions  of  countenance,  which,  with  the  attending 
incidents  and  circumstances,  conclusively  satisfying  him  of  the 
fictitious  character  of  the  pretended  malady ;  but  which  he  cou!d 
never  communicate  to  a  jury  of  scientific  men,  so  as  to  give 
them  a  fair  conception  of  their  real  importance. 

From  the  poverty  of  language,  these  facts,  should  a  witness- 
attempt  to  detail  them,  would  necessarily  be  mixed  up  with 
opinions,  general  or  partial,  in  spite  of  his  best  efforts  to  avoid  it. 
There  are  things  well  known  to  all  persons,  which  our  language 
only  enables  us  to  express  by  words  of  comparison, — such  are 
the  peculiar  features  of  the  face  indicating  an  excitement  of  the 


1  Doe  v.  Reagan,  5  Black.  217. 

2  Gibson  v.  Gibson,  9  Yerger,  329 ;  Clary  v.  Clary,  2  Iredell's  Law  Rep.  78  ; 
The  State  v.  Clark,  12  Ohio,  483. 


OPINIONS    OF    LAYMEN,    A9    EVIDENCE.  433 

passions,  affections  and  emotions  of  the  mind,  as  hope,  fear,  love, 
hatred,  pleasure,  pain,  etc.  Testimony  affirming  the  existence 
or  absence  of  either  of  these,  is  but  a  matter  of  opinion.  So,  the 
statement  of  the  fact  that  a  man's  whole  conduct  is  natural,  is  but 
the  opinion  of  the  witness,  formed  by  comparing  the  particular 
conduct  spoken  of  with  the  acts  of  the  past  life  of  the  individual 
It  would  hardly  be  claimed  that  such  evidence  should  be  ex- 
cluded, yet  it  is  equivalent  to  an  opinion  that  the  person  is  sane. 
We  are  not  now  considering  whether  the  professional  witness 
shall  be  permitted  to  give  an  opinion  upon  the  question  of  sanity, 
and  under  what  circumstances,  but  whether,  in  the  absence  of 
such  testimony,  and  under  any  circumstances,  an  opinion  may  be 
evidence,  coming  from  non-professional  witnesses.  Medical  testi- 
mony is  of  too  much  importance  to  be  disregarded.  When 
delivered  with  caution,  and  without  bias  in  favor  of  either  party, 
or  in  aid  of  some  speculative  and  favorite  theory,  it  becomes  a 
salutary  means  of  preventing  even  intelligent  juries  from  follow- 
ing a  popular  prejudice,  and  deciding  on  inconsistent  and  unsound 
principles.  But  it  should  be  given  with  great  care,  and  received 
with  the  utmost  caution,  and  like  the  opinions  of  neighbors  and 
acquaintances,  should  be  regarded  as  of  little  weight  if  not  well 
sustained  by  reasons  and  facts  that  ap!mit  of  no  misconstruction, 
and  supported  by  authority  of  acknowledged  credit." 

In  Vermont,  it  is  stated  by  the  court,  in  two  cases,  that  upon 
questions  of  insanity,  witnesses* not  professional  men,  may  be  per- 
mitted to  give  their  opinion  in  connection  with  facts  observed  by 
them ;  but  in  neither  of  the  cases  was  the  question  material  to 
the  judgment  which  was  given.1 

In  the  Circuit  Court  of  the  United  States,  sitting  in  New 
Jersey,  it  was  held  on  trial  of  an  issue  devisavit  vel  non,  that  a 
witness  might  be  asked  what  opinion  he  had  formed  of  the  sanity 
of  the  testator  at  about  the  time  of  the  will  being  made.2  It  is 


1  Lester  v.  Pittsfcml,  7  Venn.  158  ;  Morse  v.  Crawford,  19  Id.  499. 
«  Harrison  v.  Rowan,  3  Wash.  C.  C.  R.  580. 

28 


434  MEDICAL   EVIDENCE. 

presumed   that   the  witness  was   acquainted  with  the  testator, 
though  the  fact  is  not  distinctly  stated. 

This  exact  question  does  not  seem  to  have  been  decided  in  the 
courts  of  Massachusetts.  In  Needham  v.  Ide,1  MORTON,  J., 
instructed  the  jury,  in  a  probate  case,  to  the  effect  that  the  attest- 
ing witnesses  might  lawfully  give  their  opinions  as  to  the  testator's 
sanity,  "but  that  mere  opinions  of  other  witnesses  were  not  com- 
petent evidence,  and  were  not  entitled  to  any  weight,  farther  than 
they  were  supported  by  the  facts  and  circumstances  proved  on 
the  trial."  This  charge  was  approved  by  the  Supreme  Judicial 
Court.2  Judge  Denio,  in  the  case  already  referred  to,  says: 
"  If  a  rule  could  be  formed  which  should  confine  the  evidence  of 
opinions,  in  this  class  of  cases,  to  witnesses  who  were  well-informed, 
judicious  and  discriminating,  and  whose  opportunities  of  observ- 
ing the  mental  operations  of  the  individual  whose  competency 
was  in  question,  were  ample,  and  who  were,  moreover,  free  from 
bias,  no  one  would  seriously  object  to  the  doctrine  of  admitting 
it  to  be  given.  But  a  rule  so  limited  would  be  obviously  im- 
practicable, from  the  number  of  collateral  issues  which  it  would 
involve.  There  are,  however,  certain  qualifications  which  are 
indispensable.  In  the  first  place,  the  witness  whose  opinion  is 
received,  should  be  one  acquainted  with  the  person  of  whom  he 
is  to  speak,  and  should  have  heard  him  converse,  and  have  ob- 
served his  conduct  generally,  or  in  respect  to  some  particular 
transaction,  and  the  opinions  should  be  such  as  the  witness  has 
formed  from  his  own  observation,  and  not  from  information  other- 
wise derived ;  and  in  the  next  place,  if  his  opinion  is  unfavorable 
to  the  competency  of  the  party,  he  should  relate,  so  far  as  he  is 
able,  the  facts  upon  which  it  is  based.  With  these  necessary 
limitations,  we  think  such  evidence  should  be  received,  and  that 
its  weight  may  be  safely  left  to  the  decision  of  the  jury." 

1 5  Pick.  510. 

2  Dickinson  v.  Barber,  9  Mass.  225 ;  Poole  v.  Richardson,  3  Id.  330. 


CHAPTER  XXXI. 

WHAT  MENTAL  INCAPACITY  INVALIDATES  A  WILL. 

WILLS  are  wholly  void,  unless  the  testator  is  in  a  competent 
state  of  mind.  Lord  Coke  laid  down  the  rule  of  law  upon  this 
subject,  thus:  "It  is  not  enough,"  he  says,  "that  the  testator, 
when  he  makes  his  will,  should  have  sufficient  memory  to  answer 
familiar  and  usual  questions,  but  he  ought  to  have  a  disposing 
memory,  so  as  to  be  able  to  make  a  disposition  of  his  lands  with 
understanding  and  reason ;  this,"  he  adds,  "  is  such  a  memory  as 
the  law  calls  sane  and  perfect."1  Mr.  Phillipps  says:  "Apparent 
sanity,  on  some  subjects,  is  not  conclusive  proof  that  delusion  on 
particular  subjects,  and  showing  itself  on  particular  occasions, 
does  not  exist.  And  it  seems  that,  in  civil  cases,  this  partial 
insanity,  if  existing  at  the  time  of  an  act  done,  invalidates  that 
act,  though  it  be  not  directly  connected  with  it.  It  has  been 
said,  that,  when  there  is  delusion  of  mind,  there  is  insanity ;  as 
when  persons  believe  things  to  exist,  which  exist  only,  or,  at 
least,  in  that  degree  exist  only,  in  their  own  imagination,  and  of 
the  non-existence  of  which,  neither  argument  nor  proof  can  con- 
vince them,  and  which  no  rational  person  could  have  believed. 
This  delusion  may  sometimes  exist  on  one  or  two  particular  sub- 
jects, though,  generally,  there  are  other  concomitant  circum- 
stances, such  as  eccentricity,  irritability,  violence,  suspicion, 
exaggeration,  inconsistency,  and  other  marks  and  symptoms 
which  may  tend  to  confirm  the  existence  of  delusion,  and  to 
establish  its  insane  character.2 


»  Stewart  v.  Lispenard,  26  Wend.  255  ;  9  Paige,  CIS. 
2  Dew  v.  Clark,  East.  T.  1826,  Edited  by  Dr.  Haggard. 

(435) 


436  MEDICAL   EVIDENCE. 

If  a  party  impeaches  the  validity  of  a  will  on  account  of  a 
supposed  incapacity  of  mind  in  the  testator,  from  whatever  cause 
it  may  proceed,  whether  from  natural  decay  of  intellect,  from 
derangement,  or  partial  insanity,  it  will  be  incumbent  on  him 
to  establish  such  incapacity,  by  the  clearest  and  most  satis- 
factory evidence.1,  The  burden  of  prooF  rests  upon  the  party 
attempting  to  invalidate  what,  on  its  face,  purports  to  be  a  legal 
act.  If.  he  succeeds  in  proving  that  the  testator  had  been  atfec- 
ted  by  habitual  derangement,  then  it  is  for  the  other  party,  who 
claims  under  the  will,  to  adduce  satisfactory  proofj  that,  at  the 
time  of  making  the  will,  the  testator  had  a  lucid  interval,  and  was 
restored  to  the  use  of  his  reason.2  Lord  Thurlow  has  observed, 
in  the  case  of  The  Attorney-General  v.  Paruther,  "  that  the  evi- 
dence in  support  of  the  allegation  of  a  lucid  interval,  after  the 
proof  of  the  derangement,  at  any  particular  period,  should  be  as 
strong  a  demonstration  of  such  facts,  as  where  the  objecb  of  the 
proof  is  to  establish  derangement.  Perhaps  it  would  be  more 
just  to  observe  that,  if  on  the  one  side  derangement  has  been 
clearly -proved,  a  lucid  interval  must  also  be  clearly  and  satisfac- 
torally  proved  on  the  other  side.  But  there  appears  no  reason 
for  requiring,  in  the  proof  of  each  of  these  several  facts,  pre- 
cisely the  same  measure  of  evidence  or  the  same  degree  of 
demonstration.  It  is  possible,  that  both  ftcts  may  be  the  most 
satisfactorily  established,  though  the  proof  in  the  one  case  may,, 
perhaps,  not  be  stronger  or  so  demonstrative  as  in  the  other. 
Insanity,  from  its  peculiar  nature,  admits  of  more  easy  and 
obvious  proofs,  than  the  existence  of  a  lucid  interval.  The  wild- 
ness  and  unnatural  appearance  of  insanity  can  never  be  misunder- 
stood ;  but  whether  light  and  reason  have  been  restored,  is  often 
a  question  of  the  'greatest  difficulty.  It  may  happen,  therefore,, 
that  insanity,  at  a  particular  period,  is  established  by  such  a  body 


-1  White  v.  Wilson,  13  Ves.  Juris.  89. 

2  Stewart  v.  Redditt,  3  Md.  67 ;  Levy  v.  Buffington,  11  Geo.  E.  337 ;  Fitz- 
hugh  v.  Wilcox,  12  Barb.  235. 

f". ''. 


WHAT   MENTAL   INCAPACITY   INVALIDATES    A    WILL.  437 

of  cogent  evidences,  as  to  dissipate  every  possible  shade  of  doubt, 
and  to  convince  the  mind  of  the  truth  of  the  fact,  as  strongly  as 
of  its  own  existence.  But  to  insist  on  the  same  weight  of  evir 
donee,  and  the  same  degree  of  demonstration  in  the  .proof  of  a 
lucid  interval,  is  requiring  more  than  almost  any  case  can  be 
expected  to  supply,  and  perhaps  more  than  the  nature  of  the 
question  will  generally  admit.  It  is  scarcely  possible,  indeed,  to 
be  too  strongly  impressed  with  the  great  degree  of  caution  neces- 
sary to  be  observed  in  examining  the  proof  of  a  lucid  interval ; 
hut  the  law  recognizes  acts  done  during  such  an  interval  as  valid, 
And  the  law  must  not  be  defeated  by  any  overstrained  demands 
of  the  proof  of  the  fact."1 

Nor  can  it  be  necessary  to  prove,  that  the  patient  had  been 
restored  to  as  perfect  a  state  of  mind  as  that  which  existed  before 
his  derangement,  in  order  to  be  competent  to  make  his  will,  or  to 
do  any  other  legal  act.  "  The  strongest  mind,"  says  Lord  Eldon, 
"  may  be  reduced,  by  the  delirium  of  a  fever,  or  some  other  cause, 
to  a  very  inferior  degree  of  capacity;  but  the  conclusion  is  not 
just,  that  because  the  person  is  not  what  he  had  been,  he- should 
not,  therefore,  be  allowed  to  make  a  will."9  Mr.  Phil.ipps  says : 
"  A  great  intellect  may  lose  half  its  powers,  and  still  retain  more 
reason  than  falls  to  the  lot  of  the  common  order  of  minds."  All 
that  the  law  requires  is  that  the  person  should  be  restored  to  a 
^'disposing  mind,"  capable  of  doing  an  act  of  thought  and  judg- 
ment; not  that  he  should  regain  all  the  powers  of  intellect  which 
distinguished  him  before  the  malady.3 

Some  important  observations  on  the  subject  of  lucid  intervals 
have  been  made  by  Sir  W.  Wynne,  in  a  case  lately  reported,  in 
the  Court  of  Prerogative.  After  observing  that  a  person  is  not 
incapacitated,  even  after  general  habitual  insanity,  provided  there 
is  an  intermission  of  the  disorder  at  the  time  of  the  act,  and 


1  Sir  John  Xicholl's  Judgment  in  Whito  v.  Driver. 

2  Kxparte  llolylund,  11  Ves.  11. 

3  Idem. 


438  MEDICAL  EVIDENCE. 

that  where  an  habitual  insanity  is  established,  then  the  party  who 
would  take  advantage  of  the  fact  of  an  interval  of  reason,  must 
prove  such  fact ;  he  proceeds  thus :  "  Now  I  think  the  strongest 
and  best  proof,  that  can  arise,  as  to  the  lucid  interval,  is  that 
which  arises  from  the  act  itself;  that  I  look  upon  as  the  thing  to- 
be  first  examined ;  and  if  it  can  be  proved  and  established  that 
it  is  a  rational  act,  rationally  done,  the  whole  case  is  proved.  In 
my  apprehension,  when  you  are  able  completely  to  establish  thatr 
the  law  does  not  require  you  to  go  further;  and  the  citation  from 
Swinburne  states  it  to  be  so.  The  manner  in  which  he  has  laid 
it  down  is,  if  a  lunatic  person,  or  one  that  is  beside  himself  at 
times,  but  not  continually,  makes  his  testament,  and  it  is  not 
known  whether  the  same  were  made  while  he  was  of  a  sound 
mind  and  memory,  or  not,  then,  in  case  the  testament  be  so  con- 
ceived as  thereby  no  argument  of  phrensy  or  folly  can  be 
gathered,  it  is  to  be  presumed,  that  the  same  was  made  during 
the  time  of  his  calm  and  clear  intermission,  and  so  the  testament 
shall  be  adjudged  good;  yea,  although  it  can  not  be  proved,  that, 
the  testator  useth  to  have  any  clear  and  quiet  intermissions  at  all,, 
yet,  nevertheless,  I  suppose,  that  if  the  testament  be  wisely  and 
orderly  framed,  the  same  ought  to  be  accepted  lor  a  lawful  testa- 
ment. Unquestionably,  there  must  be  a  complete  and  absolute 
proof,  that  the  party  who  has  so  framed  it,  did  it  without  any 
assistance.  If  the  fact  be  so,  that  he  has  done  without  assistance, 
as  rational  an  act  as  can  be,  what  more  is  there  to  be  proved  ?  I 
do  not  know,  unless  it  can  be  shown,  by  any  authority,  or  law, 
what  the  length  of  the  lucid  interval  is  to  be,  whether  an  hour, 
a  day  or  a  month.  I  know  no  such  law  as  that.  All  that  is- 
wanting  is,  that  it  should  be  of  sufficient  leng'h  to  do  the  rational 
act  intended.  I  look  upon  it,  if  you  are  able  to  establish  the 
fact,  that  the  act  done  is  perfectly  proper,  and  that  the  party  who 
is  alleged  to  have  done  it,  was  free  from  the  disorder  at  the  time,, 
that  is  completely  sufficient."1 

1  3  Phillipps  on  Ev.  606-7;  1  Williams  on  Executors,  p.  17 — 30;  1  Jaruian  on 
Wills,  ch.  3 ;  Johnson  v.  Moore's  heirs,  1  Little's  Reports,  371. 


CHAPTER  XX XII. 

POISONS— GENERAL  PRINCIPLES  AND  OBSERVATIONS. 

NEXT  to  the  questions  relating  to  insanity,  those  connected 
with  poisons  give  most  trouble  to  the  medical  witness  and  to  the 
courts. 

The  plan  we  have  adopted,  and  which  will  be  followed  as  far  as 
possible  in  what  we  have  to  say  en  the  subject  of  poisons,  is  to 
simply  record  what  is  now  considered  settled  and  reliable  author- 
ity in  this  department  of  Medical  Jurisprudence.  Whle  this 
course  will  greatly  abridge  the  subject  in  some  respects,  compared 
with  the  manner  in  which  it  is  usually  treated,  it  will  also  be  more 
satisfactory  and  useful  to  the  lawyer  and  to  the  medical  witness. 

The  disputed  questions,  and  theories  connected  with  poisons, 
must  be  fully  discussed  in  the  proper  place ;  but  it  is  very  ques- 
tionable whether  that  place  is  within  the  narrow  compass  of  a 
text-book  upon  Medical  Jurisprudence. 

Those  who  would  examine  the  matter  in  detail,  will  find  all  they 
wish  upon  the  subject  in  Taylor's  work  upon  poisons,  or  that  of 
Mr.  Christison,  and  also  in  the  several  works  upon  Materia 
Medica,  as  well  as  in  most  works  on  Medical  Jurisprudence.1 


•Taylor's  Medical  Juris.;  Christison  on  Poisons;  Palmer's  Trial,  England, 
London  Ed.  1856;  2  Beck's  Elements,  p.  573;  Orfila,  Vol.  18,  p.  5;  Thomp- 
son, p.  477 ;  Guy's  For.  Med.;  W.  &  S.,  Med.  Juris.  501,  105  ;  Wharton's  Grim. 
Law,  p.  453  ;  Wills  on  Circum.  Ev.  209  ;  Roscoe's  Grim.  Law,  702  ;  Bishop's  Grim. 
Law,  Sec.  1  517,  519 ;  Mittermaier,  Deutsch.  Straf.,  Sec.  124  ;  Meckel,  Lehrb, 
Sec.  145 ;  Ann.  d' Hygiene  et  de  Med.  Leg.,  Juellet,  1830,  p.  365  ;  Fodere  Med. 
Leg.,  3,  p.  449 ;  Lafarge  case,  Raspoil,  Paris,  1840 ;  Puccinotti  Med.  Leg.,  p. 
195 — 255 ;  Celebrated  Trials,  p.  140.  For  a  large  number  of  references  to 
Grerman  and  French  authorities,  see  American  Criminal  Law,  p.  453 — 457. 


440  MEDICAL   EVIDENCE. 

The  great  number  of  agents  that  may  be  poisonous  to  the 
human  system, — the  imperfection  of  the  tests  used  to  detect 
many  of  them, —  the  great  variety  of  symptoms  which  result  from 
poisons,  often  resembling  those  attending  natural  disease, — the 
diabolical  skill  and  ingenuity  practised  by  the  criminal  in  their 
administration, — all  tend  to  complicate  and  embarrass  the  medical 
witness  in  determining  what  poisonous  agent  has  been  used,  if 
any,  and  what  its  effect,  in  a  case  of  alleged  poisoning.  Then 
there  are  the  idiosyncrasies  of  constitution,  and  active  or  latent 
disease  in  the  system,  rendering  the  exact  effect  of  a  poison- 
ous agent  in  many  cases,  extremely  doubtful. 

Although  there  may  be  at  this  day  no  professional  poisoners, 
like  Brinvilliers,  or  Anna  Maria  Zwanziger,  yet  the  increasing 
frequency  of  criminal  poisoning  is  actually  alarming. 

It  appears  from  the  Registrar  General's  Report  and  from  other 
sources,  that  in  England  there  are  about  one  thousand  six  hundred 
known  cases  of  poisoning  per  annum.  We  see  no  reason  to 
doubt  but  that  the  murders  in  this  country,  from  poisoning,  may 
equal  those  of  England,  in  proportion  to  our  population.  The 
popular  knowledge  of  the  effect  of  the  most  dangerous  and  deadly 
of  the  poisons,  and  the  facilities  for  obtaining  them  are  such, 
that  poisoning  has  become,  perhaps,  the  most  common  form  of 
homicide. 

No  class  of  cases,  therefore,  can  be  fraught  with  more  importance 
to  the  public,  or  to  the  individual  arraigned  for  having  adminis- 
tered one  of  these  deadly  agents  for  the  purpose  of  taking  life. 
In  them  the  medical  witness  is  aided  by  no  well-defined  lines, 
or  positive  knowledge,  as  a  general  thing,  in  their  elucidation, 
except  by  analysis,  in  the  case  of  a  few  poisons.  He  has  not  even 
the  aid  of  a  clear  definition  of  the  term  poison.  It  will  trouble 
him  to  draw  a  boundary  line  between  a  poison  and  a  medicine. 
Dr.  Taylor  says  it  can  not  be  done. 

M.  Bernard  thinks  a  correct  definition  of  a  po;son  is  impos- 
sible. Let  this  be  as  it  may,  no  complete  definition  is  to  be 
found,  notwithstanding  almost  every  author  upon  the  subject  tries 


POISONS GENERAL   PRINCIPLES    AND    OBSERVATIONS.  441 

to  frame  one.  Legislators  in  their  statutory  acts,  do  not  pretend 
to  define  the  meaning  of  the  term  when  used  therein.  In  the  Eng- 
lish statute,  it  is  enacted  inter  alia,  ''that  whosoever  shall  adminis- 
ter any  poison  or  other  destructive  thing,  with  intent  to  commit 
murder,  shall  be  guilty  of  fe!ony,  and  upon  being  convicted  there- 
of shall  suffer  death."  Here  the  meaning  of  the  two  important 
terms  poison  and  destructive  thing  is  to  be  determined  by  the 
medical  witness,  if  determined  at  all.  And  how  can  there  be  a 
conviction  until  the  terms  of  th«  statute  are  positively  defined? 

In  Ohio,  and  perhaps  most  of  the  other  States,  the  statutory 
language  is,  "  that  if  any  person  or  persons  shall  administer 
poison  to  another,"  etc.,  leaving  the  meaning  of  the  term  to  be 
settled  by  the  courts. 

Some  articles,  simple  and  harmless  in  themselves,  as  used  by 
people  in  general,  may,  by  reason  of  some  idiosyncrasy,  be  deadly 
poisons  to  some.  Yet,  they  are  not  poisons,  in  a  general  sense. 
Those  articles  that  act  by  reason  of  a  peculiar  temporary  con- 
dition of  the  system,  as  cold  water  on  a  heated  circulation ;  or  in 
a  mechanical  way,  such  as  steel  or  glass,  or  needles,  are  not 
poisons ;  s'ill  the  effect  in  some  cases  may  be  poisonous. 

Dr.  Guy  defines  a  poison  as  follows:  "A  poison  is  any  sub- 
stance which,  when  applied  to  the  body  externally,  or  in  any  wny 
introduced  into  the  system,  without  acting  mechanically,  but  by 
its  own  inherent  qualities,  is  capable  of  destroying  life."  Mr. 
Ta\  lor  does  not  attempt  a  definition,  but  says :  "  Perhaps  the  most 
comprehensive  definition  which  may  be  suggested  is  this:  A 
poison  is  a  substance  which,  when  taken  internally,  is  capable  of 
•destroying  life  without  acting  mechanically  on  the  system."  This 
definition  is  at  fault  in  this,  making  it  essential  that  the  agent 
must  be  taken  internalbj.  Other  attempts  at  a  definition  have 
.been  made,  but  with  no  better  success. 

The  term,  deadly,  is  often  used  in  indictments.  It  should  not 
•be  used  unless  it  is  certain  that  one  of  the  most  potent  poisons, 
like  prussic  acid  or  strychnine,  has  been  given.  When  the  ques- 
tion is  put  to  the  medical  witness,  as  to  the  deadly  character  of 


442  MEDICAL    EVIDENCE. 

a  particularly  deleterious  medicine,  he  should  confine  the  term, 
deadly,  to  prussic  acid,  morphine,  strychnine,  and  a  few  others  of 
the  most  virulent  kind.  Other  agents,  poisonous  in  their  charac- 
ter, may  produce  death,  and  in  that  sense  they  are  deadly,  but  it 
is  those  that  produce  death  in  small  quantities,  and  with  great 
rapidity,  that  are  really  and  technically  '*  deadly,"  in  law  or  medi- 
cine. Some  poisons  act  upon  specific  organs,  and  leave  other 
parts  of  the  system  comparatively  uninjured.  Tobacco,  hemlock, 
digitalis  and  upas  antiar,  produce  a  paralyzing  effect  upon  the 
heart.  Tartar  emetic,  inflames  the  mucous  membrane  and  the 
lungs.  The  narcotic,  and  narcotico-acrid  poisons  affect  the  brain. 
Strychnia  affects  the  spinal  cord,  producing  violent  attacks  of 
tetanus,  and  oxalic  acid  sometimes  produces  the  same  effect. 
Arsenic  also  produces  inflammation  of  the  mucous  membrane,, 
like  antimony,  and  sometimes  afftcts  the  heart  like  digitalis,  and 
the  brain  like  the  narcotics,  and  the  muscular  system  like  lead. 
Mercury  attacks  the  salivary  glands,  cantharides  the  bladder, 
manganese  and  Copper  the  liver,  iodine  the  lymphatic  glands, 
lead  the  muscular  system  generally,  spurred  rye — ergot, — pro- 
duces gangrene  of  the  limbs,  and  acts  specifically  upon  the 
uterus,  and  chromate  of  potassa,  on  the  conjunctiva  of  the  eyes. 

Most  poisons  act  by  entering  the  circulation,  while  some  operate 
through  sympathy.  Some,  that  enter  the  blood-vessels,  impress 
the  sentient  extremities  of  the  nerves,  and  hence  are  carried  to 
the  great  nervous  centers,  and  to  the  organs,  upon  which  they  act 
specifically. 

The  more  soluble  any  poison  is  when  administered,  the  sooner 
and  more  certainly  it  operates  upon  the  system ;  and  when  mixed 
with  food  or  mucilage,  the  effect  produced  is  comparatively  slow 
and  uncertain.  When  there  is  a  chemical  combination  formed  in 
the  stomach,  as  a  general  result,  the  poison  is  destroyed. 

It  is  a  singular  fact,  that  those  animal  poisons  which  find 
their  way  into  the  system  through  a  sting,  or  poisonous  cyst,  do 
not  always  thus  aflect  the  system  when  introduced  into  the 
stomach.  Thus,  the  venomous  poison  from  a  viper  or  mad  dog, 


POISONS GENERAL   PRINCIPLES   AND   OBSERVATIONS.  443- 

may  be  taken  into  the  stomach  with  impunity.  It  would  seem 
that  these  poisons  are  not  absorbed  into  the  system  through  the 
mucous  membrane,  but  must  be  introduced  directly  into  the 
circulation. 

While  some  poisonous  agents,  like  opium,  alcohol  and  tobacco, 
lose  their  effect  by  continued  use,  others,  like  arsenic  and  mercury, 
have  a  more  positive  and  certain  effect,  the  ofteiier  they  are  re- 
peated. Zinc  and  antimony,  on  the  other  hand,  may  be  taken 
by  a  healthy  person,  in  continually  increasing  doses,  with  the 
same  effect. 

From  some  idiosyncrasy  of  constitution,  some  articles,  whose 
action  is  well  known  to  be  innocent  in  their  general  effect,  may 
prove  a  poison.  Epsom  salts  has  sometimes  acted  like  opium, 
and  opium  like  the  salts, — this,  however,  is  rare.  Ipecacuanha  is 
sometimes  poisonous. 

In  disease,  poisons  do  not  act  upon  the  system  as  in  health ;. 
indeed,  all  medicines  are  said  to  be  poisonous  to  the  system  in  its 
normal  condition,  but  in  disease  they  act  differently,  and,  if  given, 
properly,  act  innocently  and  beneficially.  This  does  not  apply 
to  those  poisons,  the  action  of  which  tends  to  produce  the  same 
state  that  already  exists ;  for  irritants  would  increase  an  inflam- 
mation of  the  mucous  membrane,  if  given  internally,  and  narcotics 
might  aggravate  a  difficulty  of  the  brain. 

Poisoning  may  be  reasonably  suspected  when  a  healthy  person 
is  suddenly  taken  sick,  after  having  swallowed  moderately  of  a 
usually  healthy  article.  If  the  poison  taken  is  soluble,  the  symp- 
toms may  appear  suddenly,  but  if  in  a  solid  shape,  hours  may 
elapse  before  the  poisonous  effect  is  produced,  and  the  cause  may 
be  thus  entirely  lust  sight  of. 

Much  reliance  may  be  placed  on  the  post  mortem  appearances, 
when  any  of  the  irritant  poisons  have  been  taken ;  but  the  vege- 
table poisons  leave  but  few  traces  for  the  anatomist  or  pathologist 
to  follow  indicative  of  the  agent  of  death. 

Tetanic  convulsions  are  sure  to  attend  poisonous  doses  of  strych- 
nine. When  arsenic  has  been  administered,  there  is  generally, — 


444  MEDICAL   EVIDENCE. 

but  not  always, — traces  of  its  effects  in  the  mucous  membrane, 
especially  of  the  stomach.  If  it  still  exists  in  the  system,  the 
ohemist  will  find  it, — even  in  the  smallest  quantities.  It  may 
have  been  taken  in  sufficiently  large  doses  to  produce  death,  and 
yet  leave  no  post  mortem  appearance  indicating  that  agency, — 
not  a  particle  being  found  by  the  chemist  in  the  system,  becaus  • 
vomiting  \vill  sometimes  relieve  the  system  from  its  presence,  or 
it  may  be  eliminated  by  the  kidneys,  after  having  done  the  work 
of  death.  The  body  of  the  deceased,  having  died  from  the  effect 
of  arsenic,  is  generally  found  in  a  wonderful  state  of  preservation, 
from  the  antiseptic  nature  of  the  poison. 

Disease  is  liable  to  be  mistaken  for  poisoning,  and  poisoning 
for  disease.  Cholera  may  be  mistaken  for  poisoning,  because 
of  the  suddenness  of  its  invasion  of  the  system, — the  vomiting 
and  purging  th;it  attends  it, — and  its  usual  fatal  termination.  Tho 
witness  must  study  well  the  distinctive  character  of  this  disease. 
'Gastritis,  enteritis,  gastro-enteritis,  and  peritonitis,  resemble,  in 
many  respects,  the  effects  produced  by  irritant  poisons,  as  does 
also  perforation  of  the  stomach  and  intestines.  Intussusception 
of  the  bowels  may  be  taken  for  poisoning.  Colic  may  be  mistaken 
for  lead  poisoning. 

The  above  diseases  are  confounded  with  irritant  poisoning ; 
while  apoplexy,  epilepsy,  tetanus,  convulsions  generally,  diseases 
-of  the  spinal  marrow  and  brain  and  heart,  are,  without  much  care 
and  experience,  mistaken  for  neurotic  poisoning.  The  effect  of 
various  accidents  also,  often  resemble  poisoning. 

It  is  well  to  remember  that  sleep,  intoxication,  a  full  stomach 
and  disease,  render  poisons  slower  in  their  operation. 

It  is  now  well  settled,  that  the  system  does  not  adapt  itself, 
-as  was  once  supposed,  to  the  use  of  mineral  poisons,  so  that  a 
l.trge  quantity  can  be  introduced  by  habit  into  the  system  with 
impunity.  The  system  may,  to  some  considerable  extent,  become 
reconciled  to  the  use  of  vegetable  or  organic  poisons,  so  that 
large  doses  will  be  tolerated,  as  in  the  case  of  opium  or  tobacco. 
If  Mithridates  fed  on  poison,  until  it  became  as  nutriment, 


POISONS GENERAL    PRINCIPLES   AND    OBSERVATIONS.  445 

the  poison  mu^t  have  been  opium.  It  is,  however,  but  a  poetic 
license,  that  permitted  him  to  thus  indulge  in  poisons  until  they 
became  a  healthy  diet. 

These  are  some  of  the  general  points  with  which  the  medical 
witness  should  be  ftrniliar.  The  counsel  also,  must  understand 
these  leading  and  settled  matters  connected  with  poisons,  lor  they 
will,  to  some  extent,  arise  in  every  case  of  poisoning. 

Mr.  Taylor  seems  to  think  that  in  cases  of  poisoning,  more 
than  in  any  other,  the  witness  is  apt  to  become  a  "  professional 
witness,"  or  '•  turn  advocate."  If  his  professional  brethren  in 
England  are  one  half  as  bad  as  he  represents  them,  the  condition 
of  medical  testimony  in  that  country  is  truly  deplorable.  We 
think,  however,  he  has  overdrawn  the  matter.  At  least,  some 
of  his  legal  coternporaries  have  felt  called  upon  to  criticise  this 
feature  of  his  late  work  on  poisons,  and  defend  the  medical 
profession.  In  the  London  Law  Magazine  and  Review  we  find 
the  following : 

"  There  is  one  point  in  Dr.  Taylor's  book  which  we  can  not 
help  alluding  to.  We  mean  the  controversial  and  personal  tone 
which  the  author  falls  into  too  frequently, — unless  indeed  it  is 
unavoidable.  In  the  present  state  of  the  practice  of  experts,  and 
the  morale  of  'professional  witnesses,'  it  may  be  true  that  an 
upright  and  honorable  mind  can  not  avoid  taking  evert/  oppor- 
tunity of  bitterly  denouncing  the  abuse  of  scientific  knowledge* 
and  the  disregard  of  the  responsible  office  of  assisting  public 
justice,  and  securing  private  rights.  Yet  we  wish  the  frequency 
of  the  attack  and  exposure  of  the  conduct  of  certain  well-known 
professional  men,  were  not  so  perpetually  recurring,  and  so  broadly 
put  forth.  We  are  far  from  saying  that  the  author  condemns 
unfairly ;  but  is  it  necessary  in  a  standard  work  to  adopt  the 
bitter  and  pointed  language  which  we  are  now  noticing?  We  ara 
fully  aware  of  the  evils  he  complains  of;  indeed,  in  an  article  in 
the  Law  Magazine  for  August,  1856,  ('The  Evidence  in  Palm- 
er's case,')  we  have  ourselves  expressed  our  opinions  strongly 
with  regard  to  the  disreputable  mode  in  which  Medical  Evidenca 


446  MEDICAL   EVIDENCE. 

is  proffered.  We  there  have  said :  ( The  witness-box  seems  to 
be  sought  by  some  as  a  cheap  advertisement,  by  others  as  the 
means  of  contradicting  or  discomfiting  a  rival ;  but  from  what- 
ever cause  it  may  arise,  the  worst  danger  to  the  administration 
of  justice,  and  the  greatest  injury  to  the  scientific  character,  will 
be  incurred  whenever  it  shall  be  known  that  professional  wit- 
nesses may  be  retained  to  establish  indifferently  a  case  for  either 
side.  This  is  no  fanciful  danger ;  for  we  believe  that  there  are 
few  lawyers  of  considerable  practice  who  could  not,  within  their 
experience,  give  instances  of  the  profligacy  with  which  scientific 
testimony  is  tendered,  and  not  in  criminal  cases  only.'  And 
again :  '  That  there  have  been  frequent  occasions  when  (to  use 
Lord  Campbell's  expression,)  the  medical  witness  is  turned  into 
the  l  retained  advocate,'  is  as  true  as  it  is  grievous,  and  when 
such  occasions  occur  they  call  for  most  unrelenting  comment.' 

It  is  not,  therefore,  that  we  do  not  concur  with  the  author  in 
condemning  notorious  and  scandalous  misconduct  of  so-called 
scientific  '  professional '  witnesses ;  but  we  think,  in  a  standard  work 
like  Dr.  Taylor's,  contemporary  culprits  need  not  be  so  perpetu- 
ally pilloried.  We  get  tired  of  perpetually  seeing  notes  of  admir- 
ation placed  after  the  assertions,  doctrines,  and  imperfections  of 
Dr.  Letheby  and  Mr.  Herepath.  These  seem  to  be  Dr.  Taylor's 
especial  aversion,  and  their  inconsistencies  are  frequent  themes 
of  observation.  One  effect  of  Dr.  Taylor's  remarks  on  this  head 
will  be,  that  every  unscrupulous  jail  attorney  or  accomplice  of 
felons,  who  seeks  to  have  a  case  made  out,  go  up,  or  carried 
through,  has  had  plainly  indicated  to  him  that  there  is  a  market 
of  *  scientific  evidence,'  where  he  can  procure  the  testimony  best 
suited  to  his  wants." 

We  see  no  reason  why  the  medicnl  witness  should  yield  to 
improper  influences  in  cases  of  poisoning  particularly; — the 
difficulties  of  these  cases,  may,  and  probably  do,  leave  a  wider 
margin  for  a  difference  of  opinion,  than  in  almost  any  other,  and 
the  importance  of  the  issue  gives  to  attorneys  good  cause,  as  they 
think,  to  magnify  these  differences ;  but  medical  witnesses  certainly 


POISONS — GENERAL  PRINCIPLES   AND    OBSERVATIONS.          447 

should  not.  There  is  no  doubt  but  that  most  Medical  Evidence 
in  cases  of  poisoning,  requires  a  vigorous  cross-examinat  on  to 
strip  the  subject  of  the  mere  theory  and  speculation  of  witnesses, 
as  well  as  to  determine  his  honesty  and  intelligence.  The  Palmer 
case,  and  a  great  many  others  upon  record,  illustrate  this  necessity. 
In  most  cases,  when  a  mineral  poison  has  been  given  or  taken, 
a  well-informed  and  expert  chemist  will  detect  it.  It  may,  how- 
ever, require  a  long  and  laborious  investigation.  The  substance 
used,  not  being  known,  the  experimenter  may  have  to  go  through 
a  large  range  of  poisons.  Hence,  the  necessity  for  a  liberal  pro- 
vision by  law  being  made,  both  to  encourage  and  to  compensate 
the  chemist  in  making  thorough  investigations.  When  there  is 
fallacy  or  error,  it  usually  results  from  the  fact  that  the  chemist 
did  not  spend  time  enough  upon  the  case,  in  trying  the  several 
tests  as  thoroughly  as  certainty  demands.  So  certain  is  science 
in  this  department,  that  its  results  are  almost  always  conclusive 
and  correct,  in  regard  to  certain  poisons.  The  examination  of 
the  body,  together  with  an  examination  of  the  dishes  used,  the 
victuals  last  eaten  from,  the  matter  ejected  from  the  somach,  and 
a  careful  consideration  of  all  the  circumstances  attending  the  last 
sickness,  will  almost  invariably  enable  the  medical  witness  to 
detect  the  cause  of  death,  if  from  poison.  It  has  already  been 
said,  that  the  presence  of  poison  in  the  stomach  or  body  does  not 
prove  the  corpus  delicti,  nor  do  the  other  circumstances  just 
enumerated  ;  but  when  the  inference  is  strong,  and  the  concurrent 
evidence  of  the  symptoms  of  the  disease  of  such  a  nature  as  to 
make  any  other  presumption  less  probable,  the  offense  is  suf- 
ficiently established. 

When  the  poison  is  found  in  the  body,  or  when  the  unmis- 
takable symptoms  of  poison  are  present,  and  unaccounted  for, 
the  probabilities  are  greatly  increased  that  the  death  was  from 
poison.  Still,  it  must  be  remembered ;  1,  That  the  absence  of 
poisons  in  the  body,  or  the  failure  to  find  it,  does  not  prove  that 
poison  was  not  the  cause  of  death ;  2,  That  though  it  is 
•clearly  established  that  poison  was  taken,  it  does  not  prove  that 


448  MEDICAL   EVIDENCE. 

the  death  resulted  therefrom ;  3.  That  though  poison  is  found  in 
the  immediate  vicinity  of  the  deceased,  it  don't  necessarily  follow 
that  he  partook  of  it;  4.  Though  there  may  be  no  tiace  of 
poison  in  the  body,  as  is  often  the  case  when  vegetable  poisons 
have  been  taken,  the  surrounding  circumstances  and  symptoms 
may  point  directly  to  a  poisonous  agent.  Mr.  Taylor  properly 
caucions  the  medical  witness  against  giving  a  positive  opinion, 
before  the  process  of  chemical  analysis  is  complete,  when  it  is  insti- 
tuted. Tho>;e  who  are  interested,  are  very  apt  to  urge  the  medical 
witness  to  give  an  opinion  before  he  has  had  time  to  thoroughly  ex- 
amine the  case.  It  often  happens  that  the  last  step  in  the  analy- 
sis, is  the  one  that  determines  the  question  of  poison  or  no  poison. 
In  the  Boughton  case,  Dr.  Ilattray  gave  an  opinion  in  the  first  in- 
stance, that  the  poison  administered  to  the  deceased  was  arsenic, 
but  he  subsequently  attributed  death  to  laurel-water.  Taylor 
speaks  of  a  case  where  arsenic  was  pronounced  to  be  present, 
when  really  sulphuric  acid  was  the  poison ;  and  of  another  case,, 
where  the  medical  witness  stated  at  the  coroner's  inquest,  that  it 
was  arsenic,  when  it  was  afterward  found  to  be  oxalic  acid.  In 
another  case,  the  witness  said  oxalic  acid  had  been  given,  when  it 
turned  out  to  be  arsenic. 

This  mistake  respecting  the  nature  of  the  poison,  not  only 
impedes  and  prevents  the  attainment  of  justice,  but  it  seriously 
aftects  the  reputation  of  a  witness.  It  all  arises  from,  either 
ignorance,  or  from  hasty  and  ill-formed  opinions.  It  is  a  rule, 
that  no  opinion  should  be  formed  from  a  few  experiments,  and; 
2.  That  no  opinion  should  be  expressed  until  the  analysis  is 
completed.  Where  the  medical  witness  is  obliged  to  acknowl- 
edge, on  cross-examination,  that  he  has  once  been  mistaken  on  a 
question  so  important,  and  requiring  so  decided  an  answer,  a 
jury  may  be  induced  to  believe  that  the  witness  may  have  made 
a  second  mistake,  and  that  his  last  positive  opinion,  is  of  no  more 
value  than  that  which  he  first  expressed,  and  afterward  retracted.1 

1  Taylor's  Mcd.  Juris.  56. 


POISONS — GENERAL    PRINCIPLES    AND    OBSERVATIONS.  449 

We  will  next  examine  the  action  of  the  courts,  in  regard  to 
cases  of  poisoning  and  Medical  Evidence  therein,  before  we  pro- 
ceed to  consider  the  different  kinds  of  poisonous  agents.  As 
most  substances  denominated  poisons,  may,  under  certain  circum- 
stances, be  used  and  act  as  medicines,  and,  under  other  circum- 
stances, the  same  agents  may  be  dangerous  to  life  or  injurious  to 
health ;  the  intent  of  the  party  determines  the  character  of  the 
act.  Upon  this  intent,  therefore,  more  than  upon  the  exact 
nature  of  the  agent  used,  does  the  criminality  of  the  act  depend. 

Mr.  Roscoe  makes  the  following  judicious  remarks,  on  the 
evidence  of  medical  men  in  cases  of  murder  by  poisoning :  "  In 
proving  murder  by  poisoning,  the  evidence  of  medical  men  is 
frequently  required,  and  in  applying  that  evidence  to  the  facts 
of  the  case,  it  is  not  unusual  for  difficulties  to  occur.  Upon  this 
subject  the  following  observations  are  well  deserving  of  attention. 
In  general,  it  may  be  taken,  that  where  the  testimonials  of  pro- 
fessional men  are  affirmative,  they  may  te  safely  credited ;  but 
where  negative,  they  do  not  appear  to  amount  to  a  disproof  of 
a  charge  otherwise  established  by  strong,  various,  and  independ- 
ent evidence.  Thus,  on  the  view  of  a  body  after  death,  on  sus- 
picion of  poison,  a  physician  may  see  cause  for  not  positively 
pronouncing  that  the  party  died  by  poison ;  yet,  if  the  party 
charged  be  interested  in  the  death, — if  he  appears  to  have 
made  preparations  of  poison  wither  t  any  probable  just  motive, 
and  this  secretly ;  if  it  be  in  ev'.dence  that  he  has  in  other 
instances  brought  the  life  of  the  deceased  into  hazard ;  if  he  has 
discovered  an  expectation  of  the  fatal  event;  if  that  event  has 
taken  place  suddenly,  and  without  previous  circumstances  of  ill- 
health  ;  if  he  has  endeavored  to  stifle  the  inquiry  by  prematurely 
burying  the  body,  and  afterward,  on  inspection,  signs  agreeing 
with  poison  are  observed,  though  such  as  medical  men  will  not 
positively  affirm  could  not  be  owing  to  any  other  cause,  the 
accumulative  strength  of  circumstantial  evidence  may  be  such 
as  to  warrant  a  conviction,  since  more  can  not  be  required  than 
that  the  charge  shou]d  be  rendered  highly  credible  from  a  variety 
29 


450  MEDICAL   EVIDENCE. 

of  detached  points  of  proof,  and  that  supposing  poison  to  have 
been  employed,  stronger  demonstrations  could  not  reasonably 
have  been  expected,  under  all  the  circumstances,  to  have  been 
produced."1 

The  same  distinguished  author,  makes  this  distinction  between 
principal  and  accessory,  in  cases  of  murder  by  poisoning,  and 
murder  resulting  from  other  causes.  "  With  regard  to  the  law 
of  principal  and  accessory,  there  is  a  distinction  between  the 
case  of  murder  by  poison,  and  other  modes  of  killing.  In  gen- 
eral, in  order  to  render  a  party  guilty  as  principal,  it  is  neces- 
sary, either  that  he  should,  with  his  own  hand,  have  committed 
the  offense,  or  that  he  should  have  been  present  aiding  and 
abetting;  but  in  the  case  of  killing  by  poison  it  is  otherwise. 
If  A.,  with  an  intention  to  destroy  B.,  lays  the  poison  in  his 
way,  and  B.  takes  it  and  dies,  A.,  though  absent  when  the 
poison  is  taken,  is  a  principal.  So  if  A.  had  prepared  the 
poison,  and  delivered  it  to  D.,  to  be  administered  to  B.,  as  a 
medicine,  and  D.,  in  the  absence  of  A.,  accordingly  administered 
it,  not  knowing  that  it  was  poison,  and  B.  had  died  of  it,  A., 
would  have  been  guilty  of  murder  as  principal,  for  D.  being 
innocent,  A.  must  have  gone  unpunished,  unless  he  could  be 
considered  as  principal.  But  if  D.  had  known  of  the  poison  as 
well  as  A.  did,  he  would  have  been  a  principal  in  the  murder, 
and  A.  would  have  been  accessory  before  the  fact."2 

Where  an  indictment  for  the  murder  of  A.  B.  by  poison, 
stated  that  the  prisoner  gave  and  administered  a  certain  deadly 
poison,  and  was  supported  by  proof  that  the  prisoner  gave  the 
poison  to  C.  D.  to  administer  as  a  medicine  to  A.  B.,  but  C.  D. 
neglecting  to  do  so,  it  was  accidentally  given  to  A.  B.  by  a 
child,  it  is  sufficient;  the  prisoner's  intention  throughout  being 
to  murder.3 


1  Roscoe's  Criminal  Evidence,  701. 

2  Roscoe's,  Crira.  Ev.  702 ;  Foster,  349. 

»  R.  v.  Michael,  2  Moo.  C.  C.  120 ;  38  Eng.  Com.  L.  R.  152. 


POISONS GENERAL    PRINCIPLES    AND    OBSERVATIONS.  451 

It  has  been  held  that  an  "attempt  to  poison,"  is  not  committed 
by  administering  a  substance  not  poisonous,  even  though  believed 
to  be  so ;  because,  if  it  actually  killed  the  person,  he  would  not 
have  been  poisoned  to  death.1 

Though  the  poisonous  article  given  may  be  completely  protect- 
ed, so  that  its  poisonous  properties  are  not  manifested,  the  intent 
being  to  kill,  the  person  administering  it,  is  as  guilty  as  if  it  had 
not  been  thus  protected.  The  English  judges  have  unanimously 
held,  under  a  statute  against  administering  "poison  or  other 
destructive  thing,"  with  intent  to  kill,  that  cocculus  indicus 
berries,  while  inclosed  in  their  exterior  pod  unbroken,  given  to 
a  child  nine  weeks  old,  are  poisonous ;  though,  by  reason  of  this 
covering,  over  the  poisonous  part,  they  could  not,  as  they  did  not, 
harm  the  child.2 

An  indictment  for  mixing  sponge  with  milk,  with  intent  to 
poison,  has  been  held  bad,  for  not  setting  out  that  the  sponge  was 
•of  a  deleterious  or  poisonous  nature.3 

When  the  prisoner  gave  the  prosecutor  a  cake  containing 
poison,  which  she  merely  put  into  her  mouth,  and  spit  out  again 
without  swallowing  it ;  the  judge  held  that  a  mere  delivery  did  not 
constitute  a  crime  within  the  act  of  43  Geo.  3,  c.  58,  and  that 
there  was  no  administering  unless  the  poison  was  taken  into  the 
stomach.4  Barley's  case  settles  the  point,  that  to  constitute  an 
.administering,  there  need  not  be  an  actual  delivery  by  the  hand 
of  the  prisoner. 

A  servant  having  put  poison  into  a  coffee-pot,  and  when  her  mis- 
tress came  down  to  breakfast,  told  her  that  she  had  put  the  coffee- 
pot there  for  her,  and  the  mistress  drank  of  the  poisoned  collee ;  it 


1  The  State  v.  Clarissa,  11  Ala.  57  ;  Commonwealth  v.  Manley,  12  Pick.  173  ; 
Rex  v.  Coe.  6  Car.  &  P.  403 ;  Reg.  v.  Williams,  1  Den.  C.  C.  39 ;  Rex  v.  Hughs, 
5  Car.  &  P.  126 ;  Rex  v.  Leddington,  9  Car.  &  P.  79. 

2  Reg.  v.  Cluderny,  1  Den.  C.  C.  515 ;  Car.  &.  K.  907 ;  1  Temp.  &.  M.  219. 

3  Rex.  v.  Powells'.  4  Car.  &.  P.  571. 

4  Codman's  case ;  Harley's  case,  4  C.  &  P.  370,  where  the  Report  of  this  Case 
in  1  Moo.  C.  C.  114  is  stated  to  be  inaccurate. 


452  MEDICAL   EVIDENCE. 

vas  held  by  Park,  J.,  that  it  was  not  necessary,  in  order  to  an 
"administering,"  that  there  should  be  a  delivery  by  the  hand, 
and  that  this  was  "  a  causing  to  be  taken,"  within  the  9  Geo.  4. 
So,  where  the  prisoner  knowingly  gave  poison  to  A.,  to  adminis- 
ter to  B.  as  a  medicine,  and  it  was  accidentally  given  to  B.  by  a 
child,  the  judge  held  this  to  be  an  administering  by  the  prisoner.1 
When  A.  sent  poison,  intending  it  for  B.,  with  intent  to  kill  B., 
and  it  came  into  the  possession  of  C.,  who  took  it,  but  did  not 
die,  Gurney,  B.,  held  this  to  be  an  administering  within  the 
statute.2 

Where  poison  is  given  to  produce  abortion,  the  nature  of  it 
must  be  proven. 

It  is  to  be  borne  in  mind,  that  because  poison  has  been  ad- 
ministered, it  does  not  follow  necessarily,  that  the  death  resulted 
therefrom.3 

Either  because  poisoning  is  more  frequently  practiced  in 
Europe  than  in  this  country,  or  for  some  other  reason,  a  more 
thorough  legal  examination  is  made  there,  on  the  least  suspicion 
of  poisoning,  than  here.  In  Germany,  in  particular,  it  is  the  duty 
of  the  officer  who  prosecutes,  as  soon  as  there  is  the  least  sus- 
picion, to  secure  the  services  of  thorough  chemists,  and  a  pro- 
fessed forensic  physician,  to  make  an  analysis  and  pathological 
diagnosis  of  the  case.  In  this  country,  the  law  does  not  make  it 
the  duty  of  any  person  to  make  these  examinations,  which  are 
of  the  greatest  importance  in  detecting  the  presence  of  poison. 
It  is  usually  done  in  important  cases,  but  it  is  done  voluntarily 
by  the  profession,  and  usually  without  any  certain  prospect  of 
an  adequate  compensation.  The  chemical  analysis  of  the  viscera 
of  a  dead  person,  in  search  of  an  unknown  poison,  is  a  tedious 
process,  often  costly  and  nauseating  in  the  extreme.  The  courts 
should  pay  the  chemist  liberally. 


1  R.  v.  Michael,  2  Moo.  C.  C.  120 ;  9  C.  &.  P.  356. 

2R.  v.  Lewins,  C.  C.  &.  P.  161. 

9  Wills  on  Circum.  Ev.  209 ;  Wharton's  Grim.  Law,  Sec.  749. 


CHAPTER   XXXIII. 

ARSENIC— FATAL  DOSE— SYMPTOMS— POST  MORTEM  EXAMINATIONS. 

ARSENIC  is  perhaps  the  most  popular  criminal  poison  in  exist- 
ence, or  the  agent  most  frequently  selected  for  criminal  purposes; 
while  opium  is  the  one  most  commonly  selected  by  the  suicide. 

The  fatal  properties  of  arsenic  being  generally  known, — the 
small  quantity  required  to  produce  a  deadly  effect, — the  facility 
and  certainty  of  its  action, — its  acquisition  being  easy,  and  the 
effect  resembling  the  symptoms  of  inflammatory  disease;  all  tend 
to  make  it  the  most  common  drug  employed  by  the  murderer. 
This  poison  is  better  known  and  understood  by  toxicoligists  than 
any  other. 

Arsenic  is  not  a  natural  or  constituent  element  of  the  human 
body,  nor  does  it  remain  there  indefinitely  when  taken. 

PROPERTIES  OF  ARSENIC. — Arsenic  is  slightly  soluble  in  cold 
water,  dissolving  from  one  half  to  a  grain  of  arsenic  to  the  ounce 
of  water.  In  hot  water  more  of  the  mineral  is  held  in  solution. 
The  presence  of  organic  matter  in  the  liquid,  renders  the  poison 
less  soluble,  as  in  the  case  of  milk,  or  tea,  with  milk  and  sugar. 
Though  less  soluble  in  milk,  coffee,  tea,  brandy  and  the  like,  than 
in  distilled  water,  it  is  sufficiently  so  to  render  those  articles 
poisonous.  Mucilaginous  liquids  suspend  the  arsenic  mechanic- 
ally. Mr.  Taylor  says :  "  A  medical  witness  must  always  take 
care  to  draw  a  distinction  between  the  actual  solution  and  the 
mechanical  suspension  of  the  poison  in  a  viscid  liquid,  especially 
when  it  is  necessary  to  determine  whether  the  quantity  taken  was 
sufficient  to  kill."  The  case  of  Madeline  Smith  involved  a  point 
of  this  nature.  A  doubt  was  raised  whether  eighty-eight  grains 

(453) 


454  MEDICAL   EVIDENCE. 

of  arsenic,  (found  in  the  stomach,)  could  have  been  taken  unknow- 
ingly, and  it  was  considered  difficult  to  suggest  a  vehicle  in  which 
so  large  a  dose  could  have  been  secretly  administered.  There  is 
no  doubt  that  this,  or  even  a  still  larger  dose  of  powdered  arsenic 
might  be  secretly  administered  in  such  liquids  as  gruel  or  cocoa. 

FATAL  DOSE. — Dr.  Christison  places  the  smallest  fatal  dose  of 
arsenic  in  powder  at  thirty  grains.  It  produced  death  in  six 
days.  The  smallest  fatal  dose  in  solution  he  puts  at  four  and  a 
half  grains,  killing  a  child  of  four  years  of  age  in  six  hours. 
Mr.  Guy  thinks  the  minimum  of  a  fatal  dose  is  four  and  a  half 
grains.  Prof.  R.  0.  Doremus,  a  distinguished  chemist  of  New 
York,  stated  in  the  Stephens  case,  where  he  was  a  witness,  and 
testified  with  great  credit  to  himself  and  honor  to  his  profession, 
that  "a  fatal  dose  of  arsenic  was  variously  estimated,  at  from 
one  quarter  to  four  grains,"  the  amount  requisite  to  produce 
death,  depending  upon  the  manner  of  its  administration,  and  age, 
constitution,  etc.,  of  the  victim. 

Mr.  Taylor  says :  "  facts  will  justify  a  medical  witness  in  stat- 
ing that,  under  circumstances  favorable  to  its  operation,  the  fatal 
dose  of  this  poison  is  from  two  to  three  grains.  When  the  dose 
is  below  two  grains,  although  the  symptoms  of  poisoning  may  be 
violently  developed,  the  person  generally  recovers." 

While  the  general  rule  may  be  as  above  stated,  yet,  a  very 
small  dose  will  sometimes  produce  dangerous  symptoms  or  evea 
death,  while  in  other  cases  a  very  large  amount  may  be  taken 
without  such  a  result.  Dr.  Burns  has  reported  the  case  of  a 
young  female,  who  very  nearly  lost  her  life  from  one-fifth  of  a 
grain  of  arsenic.  Mr.  Taylor  mentions  a  case  where  a  physician 
took  sixty  grains  and  recovered,  though  suffering  severely. 

The  medical  witness  should  not  be  expected  to  give  the  quan- 
tity of  a  dose  of  arsenic  from  subsequent  appearances,  nor  the- 
time  when  taken. 

SYMPTOMS — Different  persons  are  affected  variously  by  arsenic, 
as  to  the  length  of  time  that  transpires  before  the  symptoms  appear, 
as  well  as  to  the  attending  symptoms  themselves.  Within  a» 


ARSENIC — FATAL   DOSE SYMPTOMS.  455 

hour  after  the  poison  is  taken  its  eflects  are  usually  manifested. 
Dr.  Christison  has  seen  an  instance  where  the  symptoms  appeared 
in  eight  minutes,  and  Mr.  Taylor  has  known  them  to  appear  in 
fifteen  minutes ;  and  on  the  other  hand,  he  mentions  a  case  where 
one  drachm  was  taken  on  an  empty  stomach  and  no  symptoms 
appeared  for  two  hours.  Dr.  Thompson  gives  a  case,  in  which 
from  thirty  to  forty  grains  of  arsenic  were  taken,  and  yet  there 
were  no  symptoms  of  poisoning  for  five  or  six  hours.  A  case  is 
mentioned  where  the  poisonous  effects  did  not  appear  for  ten  hours. 
This  case  Mr.  Taylor  calls  "'the  maximum  period  yet  known." 

The  exact  nature  of  the  symptoms  of  arsenical  poisoning 
and  their  distinctive  features,  should  be  well  understood  by  the 
medical  witness,  so  far  as  it  is  possible. 

In  an  acute  case,  the  first  symptoms  manifested  are  faintness, 
nausea,  with  an  intense  burning  pain  in  the  stomach,  which  is 
increased  by  pressure.  This  pain  in  the  stomach,  Mrs.  Stephens 
described  as  a  "ball  of  fire."  The 'matter  vomited  is  generally 
turbid  and  brown,  mixed  with  mucus,  and  occasionally  with  blood. 
There  is  also  at  times  purging,  with  cramps.  The  color  of  the 
matter  vomited,  depends  partly  upon  the  kind  of  arsenic  taken, 
and  its  nature  may,  therefore,  be  inferred  sometimes  from  the 
color  of  the  evacuations.  In  the  case  of  L1  Angel ier,  who  was 
supposed  to  have  been  poisoned  by  Madeline  Smith,  it  was  in  evi- 
dence that  he  vomited  a  greenish  colored  matter  of  the  thickness  of 
gruel,  and  it  was  therefore  inferred  that  the  blue  arsenic  was 
used.  Blue  arsenic  was  traced  to  the  prisoner.1  There  is  intense 
thirst,  constrictions,  and  burning  in  the  throat.  The  pulse  is 
small,  frequent,  and  irregular ;  the  skin  cold  and  clammy  in  the 
latter  stage,  when  there  is  also  paralysis,  tetanic  convulsions,  or 
spasms.  These  symptoms  are  in  general  continuous  in  fatal  cases, 
though  there  may  be  remissions  or  interruptions.  Some  of  these 
symptoms,  if  not  all,  will  be  present  in  almost  every  case  of 
arsenical  poisoning. 

1  Keg.  v.  Smith,  Irvine's  R.  30,  Edinburgh ;  Taylor. 


450  MEDICAL   EVIDENCE. 

In  a  case  recorded  by  Taylor,  three  hundred  and  forty  children 
were  poisoned  at  one  time  accidentally,  and  the  symptoms  in  them 
all  varied  but  slightly.  There  was  shivering,  with  pains  in  the 
stomach  and  bowels,  and  vomiting  of  a  clear  mucous  fluid  of  a 
green  color. 

In  case  of  chronic  poisoning,  there  will  be  inflammation  of  the 
conjunctiva,  with  suffusion  of  the  eyes  and  intolerance  of  light 
This  may  take  place  in  acute  poisoning.  The  skin  become  at- 
fected  by  a  vesicular  eruption  called  "  eczema  arsenicale."  The 
symptoms  that  follow  chronic  poisoning  are  those  that  indicate  a 
general  and  rapid  giving  way  or  breaking  up  of  the  powers 
of  life. 

POST  MORTEM  APPEARANCES. — Arsenic  produces  but  few  changes, 
as  shown  by  a  post  mortem  examination,  except  in  the  stomach 
and  intestines.  Having  a  specific  effect  upon  the  mucous  mem- 
brane of  the  stomach,  it  is  in  that  organ  that  the  greatest  visible 
effects  are  found.  It  generally  presents  a  red,  inflamed  surface. 
Mr.  Taylor  says :  "  The  mucous  membrane  of  the  stomach,  which 
is  often  covered  with  a  thick  layer  of  mucus  mixed  with  blood, 
and  with  scattered,  white,  pasty -looking  patches  of  arsenious  acid, 
is  commonly  found  red  and  inflamed ;  the  color,  which  is  some- 
times of  a  dull  or  brownish  red,  becomes  brighter  on  exposure  to 
the  air,  at  other  times  it  is  of  a  deep  crimson  hue,  interspersed  with 
black-looking  streaks  or  patches  of  altered  blood.  The  redness 
is  usually  most  strongly  marked  at  the  greater  extremity :  in  one 
case  it  may  be  found  spread  over  the  whole  mucous  surface, 
giving  to  it  the  appearance  of  red  velvet,-; — in  another  it  will  be 
chiefly  seen  on  the  prominences  of  the  folds.  It  frequently 
assumes  a  dotted  or  striated  form,  stretching  in  curved  lines 
between  the  two  openings  of  the  stomach.  Blood  of  a  dark  color 
is  effused  in  various  parts  between  the  folds,  or  beneath  the  lining 
membrane,  an  appearance  which  has  been  mistaken  for  gangrene. 
The  stomach  often  contains  a  mucus  liquid  tinged  with  blood. 
The  coats  are  sometimes  thickened  in  patches,  being  raised  up 
into  a  sort  of  fungus-like  tumor,  with  arsenic  imbedded  in  them; 


ARSENIC POST    MORTEM    APPEARANCES.  457 

at  other  times  they  have  been  found  thinned ;  and  in  others  of  a 
glutinous  consistency  and  appearance.  The  mucous  membrane  is 
rarely  ulcerated,  and  still  more  rarely  gangrenous.  Perforation 
is  but  very  rarely  found  after  arsenical  poisoning."1 

Inflammation  will  supervene  in  from  two  to  six  hours  after  the 
poison  has  been  taken,  and  even  ulceration  has  been  produced 
within  the  last  named  period.  It  is  well  settled,  that  inflam- 
mation is  not  invariably  present,  though  death  may  have  resulted 
from  the  effect  of  arsenic.  Mr.  Taylor  says :  "  Medical  evidence 
of  poisoning  from  appearances  after  death,  is,  in  such  cases, 
entirely  wanting;  they  are  not  very  common,  but  still  their 
occurrence  proves,  that  unless  great  care  be  taken  in  forming  an 
opinion,  a  case  of  arsenical  poisoning  may  be  easily  overlooked. 
They  teach  this  import  int  fact  in  legal  medicine,  that  the  non- 
existence  of  striking  changes  in  the  alimentary  canal  after  death, 
is  no  proof  that  the  party  has  not  died  from  the  effects  of  arsenic. 
When  the  dose  of  arsenic  is  small,  well-marked  changes  in  the 
body  are  rarely  met  with." 

ELIMINATION  OF  ARSENIC. — Experiments  upon  animals  show  that 
arsenic  is  not  only  rapidly  taken  from  the  stomach  into  the 
system  by  absorption,  but  that  it  is  equally  rapidly  eliminated 
and  thrown  off  from  the  body,  and  from  analogy,  it  follows  that 
the  same  process  goes  on  in  the  human  subject  Actual  observa- 
tion in  the  human  subject  sustains  this  position.  In  this  c.ise,  as 
in  others,  when  an  injurious  agent  finds  its  way  into  the  system, 
there  is  an  effort  of  nature  to  relieve  itself  by  completely  driving 
out  the  enemy.  Orfila  thinks  th:it  arsenic  does  not  remain  in 
the  living  body  over  twelve  or  fifteen  days  at  the  longest,  and 
that,  very  often  it  is  removed  in  much  less  time.  This  elimi- 
nation goes  on  through  the  kidneys,  skin,  and  intestinal  canal. 

Arsenic  has  been  found  in  the  liver  and  other  organs,  in  fatal 
cases,  in  four  hours  by  Taylor,  and  in  ten  hours  by  Chevalier, 
-after  being  taken.  Notwithstanding  the  kidneys  are  the  main 

1  Taylor  on  Poisons,  336. 


458  MEDICAL   EVIDENCE.         '    »'  ' 

channel  through  which  the  elimination  takes  place.  Arsenic  may 
exist,  in  the  system  to  a  fatal  extent,  as  in  the  case  of  the  Duke 
de  Praslin,  and  yet  not  show  itself  in  the  bile  or  liver. 

Arsenic  may  be  eliminated  from  all  parts  of  the  system,  and  yet 
remain  in  certain  organs,  as  the  liver.  After  death,  arsenic  does  not 
penetrate  the  liver  by  imbibition  from  the  stomach.  The  liver 
does  not  eliminate  through  the  stomach.  Mr.  Taylor  says :  "  In 
the  case  of  Re<r.  v.  Hunter,  a  medical  witness  was  asked  how  long; 

t— '  *  O 

a  period  was  required  for  the  entire  removal  of  arsenic  (by  absorp- 
tion) from  the  body.  There  was  reason  to  believe  that  the 
deceased  had  died  from  the  effects  of  arsenic ;  but  a  difficulty  in 
the  case  was,  that  although  he  had  died  within  the  short  period  of 
three  days  after  the  dose  of  arsenic  could  have  been  administered 
to  him  by  the  accused ;  and  although  the  symptoms  and  the 
appearances  in  the  body  were  such  as  might  have  been  caused 
by  arsenic,  not  a  trace  of  that  poison  could  be  found  in  the 
stomach  or  bowels,  or  in  their  contents.  The  question,  therefore, 
was,  if  this  man  had  really  died  from  arsenic,  could  every  par- 
ticle of  the  poison  have  been  carried  out  of  his  body  within  the 
period  of  three  days  ?  The  analysis  of  the  tissues  was  not  so 
well  understood  then  as  it  is  now ;  but  had  these  been  examined, 
some  absorbed  arsenic  might  have  been  found,  and  the  question 
thus  practically  solved.  The  medical  witnesses  answered  the 
question  by  saying,  that  they  thought  the  whole  of  the  arsenic 
taken  by  deceased  might  have  been  removed  from  the  body  in 
three  days,  partly  by  vomiting,  partly  by  purging,  and  partly  by 
absorption,  the  poison  being  carried  oft'  by  the  urine  and  cutane- 
ous exhalation.  The  answer  was  correct  so  far  as  it  applied  to 
their  chemical  examination ;  because  they  sought  for  the  poison 
only  in  a  free  state  in  the  contents  of  the  stomach  and  bowels; 
and  violent  vomiting  and  purging  might  thus  have  got  rid  of  a 
single  dose  taken  three  days  previously ;  but  it  could  not  be 
applied  to  arsenic  deposited  in  the  liver  and  other  organs." 


CIIAPTEft  XXXIV. 

TAYLOR'S  ANALYSIS  OF  ARSENIC. 

A  MOST  important  subject  connected  with  the  Medical  Evi- 
dence of  arsenical  poisoning,  and  the  point  upon  which  most 
cases  turn,  is  the  analysis  of  the  mineral,  or  the  chemical  process 
by  which  it  is  detected. 

That  this  process  may  be  well  understood,  at  least  by  the  medi- 
cal witness  and  the  attorney,  we  here  give  Mr.  Taylor's  Analysis, 
as  found  in  the  late  edition  of  his  valuable  work  on  poisons.  It 
is  the  fullest  and  most  reliable  exhibit  of  the  chemical  experiments 
upon  which  the  life  of  the  alleged  criminal,  and  the  safety  of 
society,  often  depend. 

TAYLOR'S  CHEMICAL  ANALYSIS. 

Arsenic  as  a  solid. — In  the  simple  state,  white  arsenic  may  be 
identified  by  the  following  properties:  1.  A  small  quantity  of  the 
powder,  placed  on  platina-foil,  is  entirely  volatilized  at  a  gentle 
heat  (380°)  in  a  white  vapor.  Should  there  be  any  residue  it  is 
impurity.  If  a  small  portion  of  the  white  powder  be  gently 
heated  in  a  glass  tube  of  narrow  bore,  it  will  be  sublimed,  and 
form  a  ring  of  minute  octahedral  crystals,  remarkable  for  their 
lustre  and  brilliancy.  Under  a  microscope  of  high  magnifying 
power  (250  diameters)  the  appearance  of  these  crystals  is 
remarkably  beautiful  and  characteristic ;  one  not  exceeding  the 
4000th  of  an  inch  in  size  may  be  easily  recognized  by  the  aid 
of  this  instrument  The  form  is  that  of  the  regular  octahedron, 
of  which  the  sides  are  equal.  The  crystals  are  frequently 
.grouped,  or  nucleated;  the  solid  angles  are  sometimes  cut  off,. 

(459) 


460  MEDICAL    EVIDENCE. 

and  occasionally  equilateral  triangular  plates  are  seen.  The  forms 
are  various ;  but  all  are  traceable  to  the  octahedron.  Crystals 
which  do  not  exceed  the  10,000th,  or  even  the  16,000th  of  an 
inch  in  diameter,  present  these  microscopical  characters  distinctly  ; 
and  the  1000th  part  of  a  grain  of  white  arsenic  will  furnish 
many  hundreds  of  crystals  visible  under  the  microscope.  Gener- 
ally speaking,  the  smallest  crystals  are  thosa  in  which  the  octa- 
hedral form  is  the  best  defined.  2.  If  a  porlion  of  the  powder 
be  introduced  on  a  fine  platina  wire  into  the  edge  of  the  flame  of 
a  spirit-lamp,  it  will  impart  a  steel-blue  color,  and  evolve  a  white 
vapor.  It  will  be  observed,  in  these  experiments,  that  white 
arsenic  in  vapor  possesses  no  odor.  3.  On  boiling  a  small  quan- 
tity of  the  powder  in  distilled  water,  it  is  not  dissolved ;  but  it 
partly  floats  in  a  sort  of  white  film,  and  is  partly  aggregated  in 
small  white  masses,  at  the  bottom  of  the  vessel.  It  requires  long 
boiling,  in  order  that  it  should  become  dissolved  and  equally  dif- 
fused through  water.  This  was  a  point  of  some  importance  in 
the  case  of  Reg.  v.  Lever.  A  question  here  arose,  whether  arse- 
nic would  float  on  tea.  I  have  observed  that  the  film  formed  on 
putting  powdered  arsenic  into  a  vessel  of  cold  water,  remained 
for  five  weeks  on  the  surface,  notwithstanding  the  occasional 
agitation  of  the  vessel.  4.  On  adding  a  few  drops  of  a  solution 
of  potash  to  the  mixture  of  arsenic  and  water,  and  applying  heat, 
the  poison  is  entirely  dissolved,  forming  a  clear  solution  of  ar<enite 
of  potash.  5.  The  powder  is  soluble  by  heat  in  hydrocholoric 
acid,  and  when  a  piece  of  bright  copper  is  immersed  in  the  solu- 
tion, it  acquires  a  dark  iron-gray  stain  from  the  deposit  of  metallic 
arsenic.  6.  When  the  powder  is  treated  with  a  solution  of  hydro- 
sulphuret  of  ammonia  in  a  watch-glass,  there  is  no  immediate 
change  of  color  as  there  is  with  most  metallic  poisons.  Oil  heat- 
ing the  mixture,  the  white  powder  is  dissolved;  and  on  continu- 
ing the  heat  until  the  ammonia  is  expelled,  a  rich  yellow  or 
orange-red  film  is  left  (sulphuret  of  arsenic),  which  is  soluble  in 
all  alkalies,  and  insoluble  in  hydrochloric  acid.  This  yellow  com- 
pound is  produced  from  the  mixture  by  spontaneous  evaporation. 


TAYLOR'S  AJIALYSIS  OF  ARSENIC.  461 

A  solution  of  sulphuretted  hydrogen  colors  it  slowly,  and  leaves, 
by  evaporation,  the  same  yellow  compound.  7.  It  is  oxidized 
and  dissolved  when  heated  in  strong  nitric  acid;  and  on  evapor- 
ation to  dry  ness  on  a  sand-bath,  it  leaves  a  white  deliquescent 
residue  (arsenic  acid),  which,  when  dissolved  in  a  few  drops  of 
water,  produces  a  brick-red  colored  precipitate  with  a  solution  of 
nitrate  of  silver.  8.  When  the  powder  is  heated  in  a  tube  with 
two  or  three  parts  of  charcoal,  or  of  a  carbonaceous  flux,  it  yields 
an  iron-gray  sublimate  of  metallic  arsenic,  which  has  an  odor  of 
garlic  as  it  is  evolved  in  vapor.  This  is  called  the  "reduction 
test  or  process." 

Reduction  process. — The  best  reducing  agent  is  soda-flux,  ob- 
tained by  incinerating  neutral  acetate  or  tartrate  of  soda,  in  a 
covered  platina  crucible.  When  the  qumtity  of  arsenic  is  from 
one-fourth  to  one-twentieth  part  of  a  grain,  the  tube  employed 
for  this  experiment  may  be  three  inches  long,  and  from  one-eighth 
to  one-sixth  of  an  inch  in  diameter.  When  the  arsenic  is  in  still 
smaller  proportion,  a  tube  of  smaller  diameter  should  be  used ;. 
or,  as  recommended  by  Berzelius,  the  closed  end  of  the  tube  may 
be  drawn  out  into  a  bulb  with  a  narrow  neck.  The  sublimate  of 
met-illic  arsenic  is  then  concentrated  in  the  slender  neck,  instead 
of  being  diffused  over  a  large  surface  of  glass.  Heat  should  be 
gradually  applied,  first  to  the  glass  above  the  mixture,  and  then 
to  the  mixture  itself  As  the  alkali  in  the  flux  retains  some 
arsenic,  it  has  been  suggested  that  a  slip  of  charcoal  should  be 
employed  in  place  of  soda-flux  when  the  quantity  of  arsenic  is 
very  small.  I  have,  however,  never  found  it  necessary  to  resort 
to  the  use  of  charcoal.  The  reduction  process  with  the  soda-flux 
will  be  found  sufficient  for  any  quantity  of  arsenic  that  is  visible 
to  the  eye. 

During  the  application  of  heat  to  the  mixture  in  the  tube, 
there  is  a  perceptible  odor  resembling  that  of  garlic,  which  is 
possessed  by  metallic  arsenic  only  while  passing  from  the  state 
of  vapor  to  arsenious  acid.  This  odor  was  at  one  time  looked 
upon  as  peculiar  to  .arsenic,  but  no  reliance  is  now  placed  on  it  as 


462  MEDICAL   EVIDENCE. 

a  matter  of  Medical  Evidence, — it  is  a  mere  accessory  result. 
Many  mistakes  were  formerly  made  respecting  it.  Thus,  we  find 
it  seated  to  have  been  perceived  under  circumstances  in  which  it 
could  not  have  been  produced !  It  was  not  then  known  that 
white  arsenic  (arsenious  acid)  possessed  no  odor  in  the  state  of 
vapor. 

In  this  experiment  of  reduction,  there  are  commonly  two 
sublimates  or  rings  deposited  in  the  tube;  the  upper  ring  his  a 
brown  color,  and  appears  to  be  a  mixture  of  finely  divided  metal- 
lic arsenic  and  arsenious  acid,  or,  according  to  some  chemists, 
a  sub-oxide,  more  volatile  than  the  metal.  The  lower  ring  is 
smaller,  well  defined,  and  of  an  iron  or  steel-gray  lustre.  This  is 
pure  metallic  arsenic.  In  order  to  determine  the  weight  of  the 
sublimate,  the  glass  tube  should  be  filed  off  closely  on  each  side 
of  the  metallic  rings,  and  weighed;  the  sublimate  may  then  be 
driven  off  by  heat,  and  the  piece  of  glass  again  weighed;  the 
difference  or  loss  represents  the  weight  of  the  sublimate.  These 
sublimates  are  remarkably  light,  and  require  to  be  weighed  in  a 
delicate  balance.  I  found,  in  one  experiment,  a  large  sublimate 
to  weigh  no  more  than  -08  grains.  By  heating  gently  the  piece 
of  tube,  reduced  to  powder  in  an  agate-mortar,  in  another  tube  of 
larger  diameter,  the  metallic  arsenic,  during  volatilization,  forms 
-octahedral  crystals  of  arsenious  acid,  which,  after  examination  by  the 
miscroscope,  may  be  either  dissolved  in  a  few  drops  of  water,  and 
tested  by  the  liquid  tests,  or  submitted  to  the  process  mentioned 
heretofore.  This  process  is  as  satisfactory  as  the  application 
of  the  liquid  tests,  and  it  has  the  advantage  of  not  leading 
to  the  subdivision  and  dilution  of  a  small  quantity  of  arsenic. 
One  of  the  metallic  rings  should  be  also  submitted  to  the  action 
of  nitric  acid, — converted  to  arsenic  acid,  and  tested  by  nitrate 
of  silver.  Dr.  Christison  states,  that  by  the  reduction  process  a 
distinct  metallic  sublimate  may  be  obtained  from  the  300th  part 
of  a  grain  of  arsenic.  These  sublimates  may  be  preserved 
unchanged  for  years  by  filing  off  the  ends  of  the  tube,  and  then 
hermetically  sealing  them  in  the  flame  of  a  spirit-lamp. 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  463 

Objections  to  the  reduction  process. — The  demonstration  of 
the  presence  of  arsenic  is  complete  when  all  the  results  I  have 
described  are  obtained.  The  other  tests  are  useful,  as  indicating 

'  O 

the  properties  of  arsenic,  but  they  are  not  necessary  when  metallic 
sublimates,  convertible  to  octahedral  crystals  by  heat,  and  to 
arsenic  acid  by  the  action  of  nitric  acid,  have  been  procured. 
With  such  evidence  of  the  chemical  nature  of  the  sublimates  as 
that  above  described,  there  are  no  reasonable  objections  to  the 
reduction  process.  Cadmium,  selenium,  and  mercury  produce 
sublimates,  but  these  do  not  possess  the  appearance  or  properties 
Oi"  the  arsenical  sublimate.  Fixed  stains  in  the  glass  tube  from 
the  presence  of  lead,  or  from  adhering  charcoal,  can  not  be  mis- 
taken for  a  volatile  metallic  deposit.  Arsenic  is  sometimes  used 
in  the  manufacture  of  glass,  but  the  whole  is  volatilized  during 
the  process.  It  is  contained  as  an  ingredient  in  some  kinds  of 
opal  glass ;  but  this  is  not  used  for  chemical  purposes.  The  pro- 
cess of  reduction,  therefore,  with  the  simple  precautions  above 
mentioned  respecting  the  properties  of  the  sublimate,  is  conclu- 
sive of  the  nature  of  the  substance  under  examination. 

Arsenic  in  solution  in  tvater :  Liquid  tests. — The  aqueous 
solution  of  arsenic  is  clear,  colorless,  possesses  scarcely  any  per- 
ceptible taste,  and  has  a  very  faint  acid  reaction.  In  this  state, 
we  should  first  evaporate  slowly  a  few  drops  on  a  glass  plate, 
when  a  crystalline  crust  will  be  obtained.  On  examining  this 
«rust  by  a  microscope,  it  will  be  found  to  consist  of  numerous 
minute  octahedral  crystals,  presenting  equilateral  triangular  sur- 
faces by  reflected  light  By  this  simple  experiment,  arsenic  is 
distinguished  from  every  other  metallic  poison.  1.  On  adding 
to  the  solution,  Ammonio-nitrate  of  silver,  a  rich  yellow  precipi- 
tate of  arsenite  of  silver  falls  down :  rapidly  changing  in  color  to 
an  olive  brown.  This  test  is  made  by  adding  to  a  very  strong 
solution  of  nitrate  of  silver,  a  weak  solution  of  ammonia,  and 
continuing  to  add  the  latter,  until  the  brown  oxide  of  silver,  at 
first  thrown  down,  is  almost  redissolved.  The  yellow  precipi- 
tate is  soluble  in  nitric,  tartaric,  citric,  and  acetic  acids,  as  well 


464  MEDICAL   EVIDENCE. 

as  in  a  solution  of  ammonia.  It  is  not  dissolved  by  potash  or 
soda.  2.  On  adding  to  the  solution  of  arsenic,  Ammonio-mlphate 
of  copper,  a  rich  green  precipitate  is  formed  (Scheelc's  green), 
the  tint  of  which  varies,  according  to  the  proportion  of  arsenic 
present  and  the  quantity  of  the  test  added ;  hence,  if  the  quan- 
tity of  arsenic  be  small,  no  green  precipitate  a.  first  appears : 
the  liquid  simply  acquires  a  blue  color  from  the  test.  In  less 
than  an  hour,  if  arsenic  be  present,  a  bright  green  deposit  is 
formed,  which  may  be  easily  separated  from  thj  blue  liquid  by 
filtration,  or  decantation.  This  test  is  made  by  adding  ammonia 
to  a  weak  solution  of  sulphate  of  copper,  until  the  bluish-white 
precipitate,  at  first  produced,  is  nearly  redissolved  :  it  should  not  be 
used  in  large  quantity  if  concentrated,  as  it  possesses  a  deep  violet- 
blue  color,  which  obscures  the  green  color  of  the  precipitate 
formed.  The  precipitated  arsenite  of  copper  is  soluble  in  all 
acids,  mineral  and  vegetable,  and  in  ammonia,  but  not  in  potash 
or  soda.  When  collected  and  dried,  it  possesses  this  characteristic 
property :  by  very  slowly  heating  a  few  grains  in  a  tube  of  small 
bore,  arsenious  acid  is  sublimed  in  a  ring  of  minute  resplendent 
octahedral  crystals,  visible  to  the  eye,  or  by  the  aid  of  a  lens  or 
microscope.  Objections. — The  tests  above  described  are  called 
the  liquid  tests  for  arsenic.  The  Silver  test,  first  discovered  by 
Mr.  Hume,  in  1789,  acts  with  remarkable  delicacy,  and  is  of  use 
as  a  corroborative  test  in  the  various  processes  for  determining 
the  presence  of  this  poison  in  the  body.  A  solution  of  an  alkaline 
phosphate,  which  yields  a  yellow  precipitate  with  nitrate  of  silver, 
is  not  affected  by  the  ammonio-nitrate  when  properly  made ;  and 
conversely,  a  solution  of  arsenious  acid  gives  only  a  f  lint  turbid- 
ness  with  nitrate  of  silver,  while  it  is  copiously  precipitated  of  a 
yellow  color  by  the  ammonio-nitrate.  A  diluted  solution  of  phos- 
phoric acid  may  be,  in  some  cases,  precipitated  by  this  test, 
exactly  like  a  solution  of  arsenic ;  but  there  is  one  general  answer 
to  these  objections. '  We  do  not  rely  upon  the  application  of  one 
test,  but  of  several ;  and  the  fallacies  attending  one  are  removed 
by  the  employment  of  others.  With  respect  to  the  delicate 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  4G5 

reaction  of  the  silver-test,  Mr.  Marshall  states,  that  it  is  fully 
capable  of  detecting  the  1000th  part  of  a  grain  in  solution, — a 
proof  that  its  application  was  well  understood  more  than  a  quar- 
ter of  a  century  ago.  Dr.  Traill  asserts  that  the  16,000th  part 
of  a  grain  of  arsenic  in  solution  is  precipitated  by  the  silver-test, 
and  with  the  10,000  part  of  a  grain  a  precipitate  is  visible  to  the 
eye.  I  have  found  the  8000th  part  of  a  grain  dissolved  in  one 
drop  of  water,  gave  a  pale-yellow  film ;  but  the  result  materially 
depended  on  the  quantity  of  water  present.  Thus  the  4000th 
part  of  a  grain  of  arsenic,  in  ten  drops  of  water,  was  not  percep- 
tibly affected  by  the  test;  but  the  2000th  of  a  grain,  dissolved 
in  four  drops  of  water,  gave  a  decidedly  yellow  precipitate.  The 
evidence  derivable  from  these  minute  reactions  would  not  be  of 
much  value,  except  that  the  test  is  used  to  corroborate  inferences 
from  the  results  of  other  experiments.  The  Copper  test  is  far 
less  delicate  in  its  reaction,  and  having  an  intensely  blue  color, 
it  entirely  conceals  the  green  tint  which  may  be  given  by  a  small 
quantity  of  precipitated  arsenite  of  copper;  but,  in  spite  of  this, 
if  arsenic  is  present,  the  green  precipitate  is,  after  some  hours, 
deposited  at  the  bottom  of  the  vessel.  In  cautiously  adding  a 
solution  of  arsenic  of  known  strength  to  a  few  drops  of  this  test, 
no  green  tint  was  imparted,  until  the  quantity  of  arsenic  amount- 
ed to  the  173d  part  of  a  grain  in  less  than  one  fluid-drachm  of 
water — the  degree  of  dilution  being  about  8640  times.  When- 
ever the  arsenic  is  in  small  quantity  in  its  aqueous  solution,  this 
should  be  concentrated  to  the  smallest  possible  bulk,  and  not  more 
than  one  or  two  drops  of  the  ammonio-sulphate  should  be  added 
by  means  of  a  glass  rod. 

No  one,  in  the  present  day,  would  think  of  employing  these 
liquid  tests  in  solutions,  in  which  arsenic  was  mixed  with  organic 
matter.  Almost  all  liquids  used  as  articles  of  food,  are  precipi- 
tated or  colored  by  one  or  both  of  them,  somewhat  like  a  solu- 
tion of  arsenic,  although  none  of  this  poison  is  present.  Thus, 
then,  any  evidence  founded  on  the  production  of  color,  unless 
the  arsenic  is  dissolved  in  pure  water,  or  unless  the  precipitates 
30 


406  MEDICAL   EVIDENCE. 

be  proved  to  contain  arsenrc,  should  be  rejected.  These  liquid 
tests  are  now  employed  rather  as  adjuncts  to  other  processes,  than 
as  a  direct  means  of  detecting  the  poison.  An  exclusive  reliance 
upon  them,  as  color  tests,  has  led  to  the  rejection  of  chemical 
evidence  on  several  trials,  where  they  had  been  most  improperly 
employed  in  the  analysis  of  suspected  liquids  containing  organic 
matter.  The  trial  of  Donnall  at  Launceston,  in  1817,  aflbrds  a 
memorable  lesson  to  the  medical  jurist  on  this  subject. 

3.  Sulphuretted  hydrogen  gas.  Sulphur  or  Gaseous  test. — The 
liydrosulphuret  of  ammonia  gives  no  precipitate  in  a  solution  of 
arsenic  until  an  acid  has  been  added,  whereby  arsenic  is  known 
from  most  metallic  poisons.  On  adding  an  acid  (acetic  or  pure 
diluted  hydrochloric)  a  rich  golden  yellow-colored  precipitate  is 
thrown  down  (orpiment  or  sesquisulphuret  of  arsenic).  It  is 
better,  however,  to  employ  in  Medico-legal  analysis,  a  current  of 
sulphuretted  hydrogen  gas,  which  is  easily  procured  by  adding 
sulphuret  of  iron  to  one  part  of  strong  sulphuric  acid  and  three 
parts  of  water  in  a  proper  apparatus.  The  arsenical  liquid  should 
be  slightly  acidulated  with  acetic  or  very  diluted  muriatic  acid, 
before  the  gas  is  passed  into  it :  at  least  care  should  be  taken  that 
it  is  not  alkaline.  The  yellow  compound  is  immediately  pro- 
duced and  dissolved  if  arsenic  is  present  in  small  quantity :  but 
it  may  be  collected  after  boiling  the  liquid  so  as  to  drive  off  the 
surplus  gas.  This  yellow  precipitate  is  known  to  be  sulphuret 
of  arsenic  by  the  following  properties:  1.  It  is  insoluble  in  water, 
alcohol,  and  ether,  as  well  as  in  all  acids,  mineral  (muriatic)  and 
vegetable ;  but  it  is  decomposed  by  strong  nitric  and  nitro-muri- 
atic  acids,  leaving  on  evaporation  at  a  low  temperature  arsenic 
acid,  which  may  be  neutralized  by  ammonia  and  tested  by  nitrate 
of  silver.  A  brick-red  precipitate,  will  indicate  that  the  yellow 
compound  was  sulphuret  of  arsenic,  or  orpiment.  If  strong  nitric 
acid  alone  be  used  there  will  be  no  risk  of  losing  any  portion  of 
the  arsenic.  2.  It  is  immediately  dissolved  by  caustic  potash, 
soda,  or  ammonia,  forming,  if  no  organic  matter  be  present,  a 
colorless  solution.  3.  When  dried  and  strongly  heated,  with  a 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  407 

mixture  of  three  parts  of  well-dried  carbonate  of  soda  and  one 
part  of  cyanide  of  potassium,  it  furnishes  a  sublimate  of  metallic 
arsenic.  This  sublimate  may  then  be  tested  by  the  processes 
already  described.  4.  The  precipitated  sulphuret  may  be  defla- 
grated in  a  porcelain  capsule  with  a  mixture  of  pure  nitrate  and 
bicarbonate  of  potash.  The  saline  residue,  acidulated  with  nitric 
acid,  should  be  evaporated,  and  the  arseniate  of  potash  dissolved 
out  by  a  small  quantity  of  water.  The  nitrate  of  silver  may 
then  be  added  to  this  solution,  when  the  brick-red  arsenite  of 
silver  will  be  produced.  Unless  these  properties  are  proved  to 
exist  in  the  yellow  precipitate  formed  by  sulphuretted  hydrogen 
in  an  unknown  liquid,  it  can  not  be  safely  regarded  as  a  com- 
pound of  arsenic.  On  the  other  hand,  when  they  are  possessed 
by  the  precipitate,  it  must  be  arsenic,  and  can  be  no  other  sub- 
stance. The  sulphur  test  is  extremely  delicate  in  its  reaction.  It 
begins  to  give  a  yellow  tinge  when  the  liquid  contains  only  the 
4000th  part  of  a  grain  of  arsenious  acid  in  ten  drops  of  water; 
the  arsenic  therefore  forming  about  the  40,000th  part  of  the 
solution.  This  becomes  more  decided  with  the  2000th  part  of  a 
grain,  and  still  more  with  the  250th  part  of  a  grain :  the  sulphu- 
ret is  not.  however,  actually  precipitated  until  diluted  hydrochloric 
acid,  in  which  it  is  insoluble,  has  been  added  to  the  liquid.  It  is 
important  to  observe  that  the  effect  produced  by  this  test  will 
materially  depend  on  the  quantity  of  water  in  which  the  given 
weight  of  arsenic  happens  to  be  diffused.  In  one  experiment  the 
gas  was  passed  into  a  solution  containing  the  400th  part  of  a 
grain  in  twenty  drops  of  water :  the  results  were  clear  and  decided ; 
the  liquid  acquired  a  rich  golden-yellow  color,  but  when  passed  into 
a  solution  containing  the  same  weight  of  arsenic  in  half  an  ounce 
of  water,  a  yellow  tint  was  scarcely  perceptible.  The  arsenic  in 
the  first  case  was  in  the  proportion  of  the  8000th,  and  in  the 
second  of  only  the  1,000,000th  part  of  the  solution.  Dilution 
therefore  seriously  affects  the  chemical  results.  Objections. — 
Many  objections  have  been  taken  on  criminal  trials  to  the  Medi- 
cal Evidence,  founded  on  the  application  of  this  test ;  but  it  may 


468  MEDICAL   EVIDENCE. 

be  at  once  stated  that  there  is  no  objection  to  the  inference 
derivable  from  the  sulphur  test,  provided  the  properties  of  the 
precipitate,  under  1,  2,  3,  or  4,  have  been  determined.  The  ob- 
jections apply  only  to  those  cases  in  which  arsenic  is  said  to  be 
present,  when  a  yellow  precipitate  is  produced  by  sulphuretted 
hydrogen.  1.  Cadmium.  It  is  remarkable  that  this  metal 
should  furnish,  at  the  same  time,  a  plausible  ground  of  objection, 
both  to  the  process  by  reduction  from  the  solid  state,  and  to  the 
gaseous  test  applied  to  a  solution  of  the  poison.  Thus  the  soluble 
salts  of  cadmium  yield,  with  sulphuretted  hydrogen,  a  rich  yellow 
precipitate  resembling  closely  that  produced  by  arsenic,  and  this 
also  gives  a  metallic  sublimate  when  heated  with  soda-flux.  There 
are,  however,  these  striking  differences :  the  yellow  compound  of 
arsenic  is  soluble  in  ammonia,  that  of  cadmium  is  insoluble, — 
the  compound  of  arsenic  is  insoluble  in  strong  hydrochloric  acid, 
that  of  cadmium  is  perfectly  soluble.  Of  the  dried  precipitates, 
the  sulphuret  of  arsenic  is  not  perceptibly  affected  in  the  cold  by 
strong  hydrochloric  acid,  that  of  cadmium  is  dissolved  readily  in 
the  cold  with  the  evolution  of  sulphuretted  hydrogen  gas;  and  a 
colorless  salt  of  cadmium  (chloride)  is  thereby  formed,  precipi- 
table  as  a  white  carbonate  by  alkaline  carbonates.  A  solution  of 
a  salt  of  cadmium  is  immediately  precipitated,  of  a  rich  yellow 
color,  by  hydrosulphuret  of  ammonia, — that  of  arsenic  is  not 
precipitated  by  this  agent.  There  are  many  other  differences  : 
thus  cadmium,  when  boiled  with  diluted  muriatic  acid,  is  not  pre- 
cipitated on  copper  under  the  same  circumstances  as  arsenic,  and 
it  does  not  combine  with  hydrogen  to  form  a  combustible  gas. 
An  objection,  on  the  ground  of  the  strong  similarity  of  cadmium 
to  arsenic,  was  unsuccessfully  taken  to  the  chemical  evidence 
given  on  the  trial  of  Mrs.  Burdock  at  Bristol,  in  1835.  2.  Tin. 
A  persalt  of  tin  is  precipitated  of  a  dusky  yellow  color  by  the 
gas ;  but  the  precipitate  is  destitute  of  all  the  properties  of  sul- 
phuret of  arsenic :  it  is  insoluble  in  ammonia,  and  it  gives  no 
metallic  sublimate  when  heated  with  flux.  A  solution  of  tin  is 
also  known  from  one  of  arsenic,  by  its  being  instantly  precipitated 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  469 

by  the  hydrosulphuret  of  ammonia.  3.  Antimony.  A  solution 
of  this  metal  is  precipitated  of  a  rich  orange-red  (not  yellow) 
color  by  the  gas, — the  precipitate  yields  no  metallic  .sublimate 
with  flux,  and  the  solution  of  antimony  is  also  precipitated  by 
hydrosulphuret  of  ammonia.  If  sulphuret  of  antimony  should 
be  mixed  with  sulphuret  of  arsenic,  the  antimony  is  retained  and 
the  metallic  arsenic  alone  volatilized  by  the  process  under  Exp.  3. 
4.  Uranium.  A  solution  of  a  persalt  of  uranium  gives,  with  a 
current  of  sulphuretted  hydrogen  gas,  a  yellow-brown  precipitate, 
wholly  unlike  that  caused  by  arsenic.  This  precipitate  differs 
from  that  of  sulphuret  of  arsenic,  in  being  insoluble  in  ammonia, 
soluble  in  hydrochloric  acid,  and  in  yielding  no  metallic  subli- 
mate with  soda-flux.  Besides,  a  solution  of  uranium  salt  is 
precipitated  by  hydrosulphuret  of  ammonia. 

MARSH'S  PROCESS.  HYDROGEN  TEST. — This  process  for  tha 
detection  of  arsenic  was  first  proposed  by  Mr.  Marsh,  at  Wool- 
wich, in  the  year  1836.  It  is  based  on  the  decomposition  of 
arsenious  acid  and  the  soluble  compounds  of  arsenic,  by  hydrogen 
evolved  in  the  nascent  state  from  the  action  of  diluted  sulphuric 
or  hydrochloric  acid  on  zinc.  The  apparatus  is  of  the  most 
simple  kind,  and  is  so  well  known,  as  to  need  no  description.  It 
has  undergone  various  modifications,  and  has  received  the  names 
of  various  supposed  inventors  or  improvers,  but  the  principle  is 
the  same,  and  the  sole  merit  of  the  invention  must  be  assigned 
to  Mr.  Marsh.  The  arsenic  may  be  introduced  into  the  short 
leg  of  the  tube  in  the  state  of  powder ;  but  it  is  better  to  dissolve 
it  in  water,  by  boiling,  either  with  or  without  the  addition  of  a 
few  drops  of  a  solution  of  potash.  The  metallic  arsenic  combines 
with  a  portion  of  the  hydrogen,  forming  arsenuretted  hydrogen 
gas,  which  possesses  the  following  properties:  1.  It  has  an  oileu- 
sive  odor,  somewhat  similar  to  that  of  garlic.  2.  It  immediately 
blackens  a  solution  of  nitrate  of  silver.  This  may  be  proved 
by  holding  a  piece  of  filtering  paper,  wetted  with  a  solution  of 
nitrate  of  silver,  in  the  current  of  gas  as  it  escapes  from  the  jet. 
The  silver  is  reduced,  and  presents  a  black  metallic  appearance. 


470  MEDICAL   EVIDENCE. 

If  the  gas  is  passed  into  a  tube  containing  a  weak  neutral  solu- 
tion of  nitrate  of  silver,  a  black  precipitate  of  reduced  silver  is 
formed,  and  the  liquid,  on  evaporation,  yields  arsenic  acid  or  red 
arsenite  of  silver.  3.  It  burns  with  a  pale  bluish-white  flame, 
and  evolves,  during  combustion,  a  white  smoke  (arsenious  acid). 
4.  A  cold  plate  of  glass  or  white  porcelain,  he'd  in  the  flame- 
near  the  point,  receives  a  dark  stain  from  the  deposit  of  arsenic 
upon  it.  This  stain  is  composed  in  the  centre  of  pure  metallic 
arsenic,  which  may  be  sometimes  raised  up  in  a  distinctly  bright 
leaf  of  metal, — immediately  on  the  outside  of  this,  is  an  opaque- 
black  ring  (suboxide  of  arsenic?),  which,  when  viewed  by  trans- 
mitted light,  is  of  a  clear  hair-brown  color  at  the  extreme  edge : 
if  the  quantity  of  arsenic  be  very  email,  the  metallic  lustre  and 
opacity  may  be  wanting,  and  the  deposit  will  be  merely  a  film  of 
a  brown  color  by  transmitted  light.  On  the  outside  of  this  black 
ring  is  a  thin  wide  film,  of  a  milk-white  appearance,  which  is  no- 
thing more  than  arsenious  acid  reproduced  by  the  combustion  of 
the  gas.  5.  A  white  saucer,  or  a  slip  of  card  or  paper  moistened 
with  arnmonio-nitrate  of  silver,  held  about  an  inch  a!;ove  the  point 
of  the  flame,  will  be  found,  if  arsenic  be  present,  to  be  colored 
yellow,  from  the  reproduced  arsenious  acid  being  absorbed,  and 
forming  yellow  arsenite  of  silver,  easily  soluble  in  ammonia.  If 
a  current  of  the  gas  be  conducted  through  a  tube  of  hard  Ger- 
man glass,  and  a  spirit-lamp  applied  to  the  tube  during  the  pas- 
sage of  the  current,  metallic  arsenic  of  a  steel-gray  color  will  be 
deposited  on  the  glass  at  a  short  distance  from  the  flame.  This 
may  be  removed,  and  tested  by  nitric  acid. 

This  process  is  probably  the  most  delicate  of  all  those  which 
have  been  devised  for  the  detection  of  arsenic ;  but  for  this  reason 
it  requires  the  greatest  caution  in  its  application.  Its  delicacy 
has  been  sometimes  improperly  estimated  by  the  assumed  weight 
of  the  metallic  deposit  on  glass ;  whereas  it  is  certain  that  the 
quantity  of  arsenic  in  one  infinitesimal  deposit,  if  transferred  to 
the  apparatus,  would  give  no  indication  whatever  of  the  presence 
of  arsenic.  In  operating  on  the  poison  it  must  be  remembered 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  471 

that,  by  this  process,  we  are  dividing  and  subdividing  the  metal 
into  a  series  of  deposits,  the  weight  of  some  of  which  might  not 
be  equal  to  the  millionth  part  of  the  weight  of  the  arsenic  which 
is  actually  furnishing  them.  More  or  less  arsenic  is  always  lost 
during  the  combustion  of  the  gas;  and  most  of  the  apparatuses 
are  so  constructed,  that  they  allow  of  the  escape  of  this  poison- 
ous gas ;  a  fact  which  may  be  demonstrated  by  placing  a  solution 
of  nitrate  of  silver  on  filtering  paper  over  the  open  end  of  the 
tube.  Objections. — Other  substances  will  combine  with  nascent 
hydrogen,  and  when  the  gas  is  burnt,  a  deposit  will  be  formed  on 
glass  or  porcelain,  which  may  be  mistaken  for  arsenic.  A  liquid 
containing  antimony,  selenium,  phosphorus,  sulphur,  or  even 
some  kinds  of  organic  matter,  may  produce  a  compound  with 
hydrogen,  which,  when  burnt,  will  leave  a  dark  deposit  or  stain 
on  glass.  The  only  objection  of  any  practical  force  is  that 
founded  on  the  presence  of  antimony,  which,  as  a  result  of  medi- 
cinal use,  may  be  present  in  the  liquids  as  well  as  in  the  tissues 
of  a  dead  body.  A  current  of  antimonuretted  hydrogen  gas 
reduces  silver  from  a  solution  of  the  nitrate,  but  it  has  not  the 
odor  of  arsenuretted  hydrogen.  It  burns  with  a  very  pale  lemon- 
yellow  flame,  and  forms  a  white  smoke  (oxide  of  antimony). 
When  a  solution  of  ammonio-nitrate  of  silver,  in  a  saucer,  is 
exposed  to  this  white  vapor,  there  is  a  black  stain,  in  place  of 
the  yellow  deposit  produced  by  arsenic.  The  differences  between 
the  arsenical  and  antimonial  deposits  obtained  by  the  process  of 
Marsh  are,  however,  well  marked.  The  antimonial  deposit  has 
rarely  a  bright  metallic  lustre,  except  when  seen  on  the  reverse 
side  of  the  glass.  By  transmitted  light,  the  deposit  is  of  smoky- 
black  color,  while  that  of  arsenic  is  hair-brown.  Numerous 
suggestions  have  been  made  for  distinguishing  a  deposit  of  arse- 
nic from  that  of  antimony.  The  plan  which  I  find  to  be  best 
adapted  for  this  purpose  has  been  already  described  in  reference 
to  arsenious  acid  and  reduced  arsenic.  Receive  the  deposit  from 
the  burning  gas  on  the  interior  of  a  small  white  porcelain  cap- 
sule. Add  a  few  drops  of  strong  nitiic  acid.  The  deposit  will 


472  MEDICAL   EVIDENCE. 

be  immediately  dissolved.  Evaporate  gently  to  dryness.  Moisten 
the  dry  residue  with  one  or  two  drops  of  water,  and  then  add 
a  few  drops  of  a  strong  solution  of  nitrate  of  silver.  If  the 
stain  was  owing  to  arsenic  wholly,  or  in  part,  a  brick-red 
colored  precipitate  will  immediately  appear.  This  will  be  more 
or  less  distinct,  according  to  the  quantity  of  arsenic  present.  The 
precipitate  (if  owing  to  arsenic)  is  entirely  soluble  in  ammonia. 
A  deposit  of  antimony  thus  treated,  leaves  a  white  residue  (oxide 
of  antimony),  insoluble  in  water.  Nitrate  of  silver  added  to  it 
produces  no  colored  precipitate;  but  if  a  little  ammonia  be 
brought  near,  either  in  vapor  or  liquid,  and  a  solution  of  potash 
is  added,  a  precipitate  is  formed,  which  becomes  black  by  stand- 
ing. Hydrosulphuret  of  ammonia  dissolves  the  antimonial  de- 
posit immediately,  and  on  evaporation  leaves  an  orange-reddish 
colored  film  of  sulphuret  of  antimony,  soluble  in  hydrochloric 
acid,  and  insoluble  in  ammonia.  The  hydrosulphurct  does  not 
readily  dissolve  the  arsenical  deposit,  but  when  gently  evaporated, 
it  leaves  a  bright-yellow  film  (sulphuret  of  arsenic),  not  soluble 
in  hydrochloric  acid,  but  soluble  in  ammonia.  Imponderable 
quantities  of  the  two  metals  may  be  thus  easily  identified.  In 
testing  these  minute  films  for  arsenic,  hydrochloric  acid  must  not 
be  used  with  the  nitric,  since,  on  evaporation,  a  portion,  or  the  whole 
of  the  arsenic  may  be  volatilized,  and  lost  as  chloride  of  arsenic. 
It  will  be  observed,  in  the  production  of  antimonuretted  hydro- 
gen, that  antimony  is  rapidly  deposited  in  the  form  of  a  fine 
black  precipitate  in  the  tube.  This  arises  from  the  chemical 
action  of  the  zinc.  The  antimonuretted  hydrogen  can  not  be 
kept  long,  as  the  antimony  is  speedily  separated  from  it.  Arse- 
nuretted  hydrogen  may  be  kept  for  use  for  a  much  longer  period, 
but,  sooner  or  later,  some  arsenic  is  deposited  on  the  zinc,  as  well 
as  on  the  metallic  parts  of  the  apparatus.  Stopcocks  are  thus 
coated  with  a  film  of  arsenic ;  hence  fresh  zinc  and  a  clean  stop- 
cock should  be  used  on  each  occasion,  or  the  arsenic  of  a  former 
operation  might  be  erroneously  referred  to  a  substance  under 
examination.  The  operator  must  not  only  look  to  the  state  of 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  473 

the  apparatus,  but  he  should  also  satisfy  himself  of  the  absolute 
purity  of  his  materia's. 

The  zinc,  sulphuric,  and  hydrochloric  acids,  which  are  employed 
in  Marsh's  process,  are  often  contaminated  with  arsenic.  Dr. 
Clark,  of  Aberdeen,  informed  me,  some  years  since,  that  he  had 
not  discovered  a  specimen  of  zinc  free  from  arsenic,  when  about 
an  ounce  of  the  metal  was  used  in  an  experiment,  and  the  hydro- 
gen gas  evolved  was  tested  by  a  solution  of  nitrate  of  silver :  but 
pure  distUed  zinc  may  now  be  procured  from  respectable  drug- 
gists. The  su'phuric  acid  of  commerce  sometimes  contains  a 
large  quantity  of  arsenic.  The  late  Mr.  Scanlan  found  that  2000 
grains  of  one  specimen  of  acid  yielded  1-5  grains  of  sesquisul- 
phuret  of  arsenic.  From  the  great  demand  for  a  cheap  and  im- 
pure -sulphuric  acid  for  agricultural  purposes,  it  is  now  the 
exception  to  the  rule  to  find  this  acid  free  Irom  arsenic.  Hydro- 
gen procured  by  this  acid  is  often  contaminated  with  arsenic  to  a 
dangerous  extent.  An  impure  sample  of  acid  led  to  the  death  of 
an  Irish  chemist,  who  breathed  hydrogen  thus  produced,  and  who 
had  neglected  to  test  the  acid  before  use.  The  impurity  of  this 
acid  leads  to  the  contamination  of  hydrochloric  or  muriatic  acid 
with  arsenic,  for  the  cheap  arsenical  acid  is  now  largely  employed 
in  this  manufacture.  The  best  answer  to  all  objections  based  on 
the  presence  of  arsenic  from  accidental  sources  is,  that  the 
materials  were  tried  repeatedly  before  the  suspected  liquid  was 
introduced  into  the  apparatus.  If  no  sublimate  or  deposit  be 
formed  until  after  the  introduction  of  the  suspected  liquid,  it  is 
evident  that  the  arsenic  must  have  been  in  the  liquid  introduced ; 
a  fact  which  miy  be  considered  as  clearly  established,  if,  on  re- 
moving the  liquid  and  washing  out  the  tube,  no  deposits  what- 
ever result  from  employing  the  portions  of  the  same  acid  and 
zinc. 

These  are,  I  believe,  the  only  tangible  objections  to  the  use 
of  Marsh's  test,  and  they  are  not  difficult  of  removal,  when  ordi- 
nary c  ire  is  taken.  It  will  be  apparent,  that  not  one  of  these 
objections  could  apply,  except  to  those  cases  where  Marsh's  test 


474  MEDICAL    EVIDENCE. 

is  relied  on  as  the  sole  and  exclusive  chemical  proof  of  the  pres- 
ence of  arsenic;  but  in  most  instances,  when  this  process  is 
safely  applicable,  other  tests  are  also  applicable ;  and  it  does  not 
at  all  diminish  the  merit  of  this  most  useful  and  ingenious  inven- 
tion, to  say  th.it  the  results  which  it  furnishes  should  be  corrobo- 
rated by  the  "use  of  some  of  the  other  tests,  if  it  were  only  for 
the  sake  of  preventing  any  plausible  objections  to  the  inference 
derivable  from  its  employment.  The  great  object  of  chemical 
evidence  is  not  to  show  a  court  of  law  what  may  be  done  by  the 
use  of  one  test  only,  by  peculiar  manipulations  on  imponderable 
traces,  but  to  render  the  proof  of  the  presence  of  poison  in  the 
substance  examined  most  clear  and  convincing.  If,  in  any  case, 
we  have  no  other  evidence  to  offer  than  that  furnished  by  Marsh's 
process, — a  case  in  which  the  quantity  of  poison  must  be  infi- 
nitesimal, and  the  metallic  deposites  proportionally  minute, — it 
would  be  better  to  abandon  the  evidence  altogether,  than  to  main- 
tain that  poison  is  present  from  results  which  admit  of  no  sort 
of  corroboration ;  for  all  who  have  experimented  on  the  subject, 
must  have  perceived  the  utter  inefficacy  of  applying  liquid  tests 
to  determine  the  chemical  properties  of  imponderable  and  scarcely 
visible  sublimates.  This  appears  to  me  to  have  been  the  most 
objectionable  part  of  the  evidence  in  the  well-known  case  of 
Madame  Laffarge.  Orfila  admitted  that  he  had  obtained  only  a 
few  deposits,  so  slight  that  they  could  not  be  weighed.  He  esti- 
mated the  united  weight  at  half  a  milligramme  (-0077  gr.),  or 
about  the  one  hundred  and  thirtieth  part  of  a  grain. 

When  reliance  is  placed  on  the  blackening  of  a  solution  of 
nitrate  of  silver  as  evidence  of  the  presence  of  arsenic,  it  must 
be  remembered  that  sulphuretted  hydrogen  will  produce  the  same 
effect,  and  that  sulphur  is  often  contained  in  zinc.  The  gas 
should  either  be  first  passed  through  a  solution  of  a  salt  of  lead, — 
or  so  entirely  decomposed  by  heat,  that  metallic  arsenic  is  obtained 
in  the  tube  through  which  the  current  part  is  passing. 

Delicacy  of  Mars/is  process. — Marsh's  process  is  undoubtedly 
one  of  great  delicacy.     MM.  Danger  and  Fiandin  assert  that 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  475 

metallic  deposits  may  be  procured  when  the  arsenic  forms  only 
the  2,000,000th  part  of  the  liquid  examined.  M.  Signoret  states 
that  he  has  procured  metallic  deposits  with  only  the  200,000,000th 
part  of  arsenic  in  the  liquid :  this  is  in  the  proportion  of  one 
grain  of  arsenic  dissolved  in  about  400,000  ounces,  or  3000 
gallons  of  water !  As  the  delicacy  of  this  test  has  been  already 
made  a  subject  of  discussion  in  a  court  of  law  (The  Queen  against 
Hunter,  Liverpool  Spring  Assizes,  1843),  it  may  be  proper  to 
offer  a  few  remarks  respecting  it.  It  was  sttted  at  that  trial, 
that  the  one-millionth  pirt  of  a  grain  of  arsenic  might  be- 
rendered  visible  by  Marsh's  test;  and  the  judge,  guided  by 
this  statement,  put  the  question  to  another  medical  witness,, 
whether  arsenic  could  be  so  removed  from  the  stomach  in  three 
days,  as  that  it  would  be  impossible  to  discover  the  one-millionth 
part  of  a  grain  in  the  lodij.  It  appears  to  me  that  the  facts 
relative  to  the  delicacy  of  tests  are  not  always  stated  with  suffi- 
cient clearness  on  these  occasions.  Thus  we  have  to  consider  two 
points :  1.  The  total  quantity  of  poison  experimented  on ;  and 
2.  the  degree  of  dilution,  or  the  total  quantity  of  liquid  in  which 
the  poison  is  dissolved  or  suspended.  There  is  no  doubt  that 
considerably  less  than  the  millionth  part  of  a  grain  of  arsenic 
may,  by  Marsh's  test,  be  rendered  visible  on  a  glass  plate :  it  is 
possible  to  distinguish  with  the  eye  a  piece  of  leaf-gold  which 
would  weigh  less  than  the  ten-millionth  part  of  a  grain;  but  the 
practical  question  is,  whether  this  test  will  enable  us  to  discover 
arsenic  in  a  single  drop  of  a  solution,  made  by  dissolving  one 
grain  of  the  poison  in  a  million  grains  or  sixteen  gallons  of  water ! 
If  not,  the  statement  amounts  to  nothing;  for  it  is  clear  that  if 
more  than  one  drop  of  such  an  extremely  diluted  solution  be 
taken,  the  test  is  acting  upon  a  larger  quantity  of  arsenic  than 
the  above  form  of  expression  wou'.d  indicate.  I  have  generally 
found  that  the  fractional  quantity  stated  to  be  detected,  referred 
rather  to  the  degree  of  dilution  than  to  the  absolute  quantity  of 
poison  present :  whereas  a  test  may  fail  to  act,  as  it  has  been 
already  stated,  either  from  the  smallness  of  the  quantity  of  poison 


476  MEDICAL   EVIDENCE. 

present,  or  from  the  large  quantity  of  water  in  which  it  is 
diffused.  The  results  of  my  own  experiments  are,  that  when 
arsenic  is  mixed  with  the  acid  liquid  in  a  tube  capable  of  holding 
two  fluid-ounces,  very  faint  and  scarcely  perceptible  deposits 
begin  to  be  formed  on  a  glass  plate,  \\itb  a  quantity  equal  to  the 
2160th  part  of  a  grain:  the  diffusion  here  being  equal  to  two 
million  times  the  weight  of  the  poison.  With  the  1080th  part 
of  a  grain  in  the  same  quantity  of  water  (the  arsenic  forming 
therefore  one-millionth  part),  slight  brown  annular  stains  were 
procured.  The  annular  form  is  probably  due  to  the  central 
portion  of  the  minute  film  being  volatilized  by  the  heat  of  the 
point  of  the  flame:  unless  the  glass  is  speedily  removed,  the 
whole  of  the  deposits  may  vanish.  With  the  720th  of  a  grain, 
the  arsenic  being  in  the  proportion  of  about  the  800,000th  part 
of  the  liquid,  the  stains  were  much  more  decided,  but  quite  im- 
ponderable. With  the  100th  grain  in  one  fluid-ounce  of  water 
(the  48,000th  part),  and  the  67th  grain  in  two  fluid-ounces  (the 
64,800th  part),  the  deposits  on  glass  were  decided  and  character- 
istic ;  and  it  is  at  this  point  that  the  process  begins  to  be  safely 
available  for  the  purposes  of  legal  medicine.  M.  Villain  has 
attempted  to  determine  how  many  metallic  deposits  can  be  ob- 
tained from  a  given  weight  of  arsenious  acid.  The  result  at 
which  he  arrived  is,  that  l-G5th  part  of  a  grain  of  white  arsenic 
will  yield  on  an  average  226  metallic  deposits  of  an  average 
diameter  of  the  l-12th  of  an  inch.  The  average  weight  of  each, 
therefore,  even  supposing  there  were  no  loss,  would  be  about  the 
1-1 5,000th  part  of  a  grain. 

REINSCH'S  PROCESS. — Hugo  Reinsch  first  published  an  account 
of  this  process,  which  originated  in  an  accidental  discovery  of 
arsenic  in  muriatic  acid,  in  1843.  Soon  after  the  announcement, 
I  examined  the  application  of  the  process  to  the  purposes  of 
Medical  Jurisprudence,  and  a  full  account  of  the  results  was 
published  in  the  British  and  Foreign  Medical  Review,  for  July, 
1843,  p.  275.  It  has  since  been  extensively  employed  in  this 
•countrary  in  Medico-legal  practice.  While  it  is  open  to  fewer 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  477 

objections  than  the  process  of  Marsh,  it  is  preferable  in  its  sim- 
plicity, and  in  the  facility  of  its  application.  It  enables  the 
analyst  to  trace 'arsenic  to  a  minute  degree  in  all  its  combinations, 
if  we  except  arsenic  acid  and  the  arseniates ;  and  in  reference  to 
these  compounds,  it  is  inferior  in  delicacy  to  the  process  of  Marsh. 
One  substance  only  is  required  of  which  the  purity  must  be 
guaranteed,  namely,  the  muriatic  or  hydrochloric  acid.  Metallic 
copper,  either  in  the  form  of  freshly  polished  foil  or  wire,  is  used 
for  the  separation  of  the  metal.  The  material  best  adapted  for 
this  process  is  the  finest  copper-wire  woven  into  a  gauze  con- 
taining from  twelve  to  sixteen  thousand  apertures  to  the  square 
inch.  A  small  piece  of  this,  by  reason  of  the  extensive  surface 
presented,  will  enable  the  analyst  to  collect  a  comparatively  larger 
proportion  of  arsenic  than  would  be  deposited  on  the  foil.  The 
arsenic  adheres  to  it  with  greater  firmness,  and  the  gauze  will 
indicate  by  a  change  of  color  the  presence  of  the  poison,  when 
the  appearance  on  the  foil  would  be  indistinct. 

The  liquid  suspected  to  contain  arsenic  is  mixed  with  from  one- 
sixth  to  one-eighth  part  of  its  volume  of  muriatic  acid  (free  from 
arsenic),  and  brought  to  the  boiling-point.  A  solid  is  simply 
boiled  in  distilled  water  containing  about  the  same  proportion  of 
acid.  When  brought  to  the  boiling-point,  about  half  a  square 
inch  of  copper  gauze  is  introduced,  and  if  arsenic  is  present,  even 
in  a  small  quantity,  this  is  indicated  by  the  copper  acquiring  an 
iron-gray  color.  The  gauze  is  removed,  washed  in  water  to  free 
it  from  any  trace  of  acid, — dried  on  blotting  paper  and  in  a 
warm  current  of  air,  rolled  into  a  small  cylinder  and  placed  in  a 
dry  and  warm  reduction-tube.  Heat  is  now  gradually  applied  to 
the  cylinder  of  coated  copper,  and  the  metallic  arsenic,  in  sublim- 
ing, is  deposited  in  a  cool  part  of  the  tube  in  the  form  of  a  ring 
of  brilliant  octahedral  crystals  of  white  arsenic.  These  may  be 
identified  by  the  microscope,  and  then  tested  in  the  manner 
described.  When  the  quantity  of  arsenic  is  small,  the  polished 
copper  merely  acquires  a  faint  greenish-blue  or  bluish  tint,  and 
the  time  required  for  the  deposit  is  materially  affected  by  the 


478  MEDICAL   EVIDENCE. 

quantity  of  water  present,  or  in  other  words,  the  degree  of  dilution. 
But  one  great  advantage  is,  that  we  are  not  obliged  to  dilute  the 
liquid  in  the  experiment,  and  there  is  no  material  loss  of  arsenic 
after  the  copper  is  introduced,  as  in  Marsh's  process ;  the  whole 
may  be  removed  and  collected  by  the  introduction  of  successive 
portions  of  the  metal.  This  process  is  extremely  delicate,  the 
results  are  very  speedily  obtained,  and  are  highly  satisfactory. 
Among  the  cautions  to  be  observed  are  these:  1.  Not  to  employ 
too  large  a  surface  of  copper  in  the  first  instance ;  and  2.  Not  to 
remove  the  copper  from  the  liquid  too  soon.  When  the  arsenic 
is  in  small  quantity,  and  the  liquid  is  much  diluted,  the  deposit 
does  not  take  place  sometimes  for  half  an  hour.  If  the  copper 
is  boiled  in  the  liquid  for  an  hour  or  longer,  it  may  acquire  a 
dingy  tarnish,  in  the  absence  of  arsenic,  from  the  action  of  the 
acid  only  (oxychloride  of  copper).  This  is  known  by  its  yielding 
no  crystalline  sublimate  when  heated,  its  want  of  metallic  lustre, 
as  well  as  by  its  being  easily  removed  by  friction. 

Objections. — Certain  objections  have  been  urged  to  this  pro- 
cess. 1.  Arsenic  may  be  present  in  the  muriatic  acid :  this  is  at 
once  answered  by  boiling  the  copper  in  a  mixture  of  the  muriatic 
acid  and  water  before  adding  the  suspected  liquid.  This  should 
always  be  a  preliminary  experiment  In  the  case  of  Mrs.  Woolei, 
some  doubt  was  thrown  on  the  scientific  evidence  by  reason  of 
the  use  of  arsenical  muriatic  acid.  The  discovery  of  the  impurity 
was  not  made,  until  after  the  analysis  was  completed.  2.  Another 
objection  is,  that  other  metals  are  liable  to  be  deposited  on  copper 
under  similar  circumstances.  This  is  the  case  with  antimony, 
whether  in  the  state  of  chloride,  or  of  tartar  emetic ;  and  it  is 
not  always  easy  to  distinguish  by  the  appearance  the  antimonial 
from  the  arsenical  deposit.  Should  the  quantity  of  antimony  be 
small,  the  deposit  is  of  a  violet  tint :  if  large,  of  an  iron-gray 
color,  resembling  arsenic.  In  this  case,  a  portion  of  the  solution 
may  be  greatly  diluted,  when  the  peculiar  violei>red  color  of  the 
antimonial  deposit  will  be  made  apparent.  There  is  one  answer 
to  these  objections,  namely,  that  from  an  arsenical  deposit, 


TAYLOR  S    ANALYSIS    OF   ARSENIC.  479 

octahedral  crystals  of  arsenious  acid  may  be  procured  by  sloivly 
heating  the  copper,  and  the  crystals  may  be  proved  by  other 
tests  to  be  those  of  white  arsenic.  Such  a  corroboration  is  neces- 
sary, because  the  crystalline  form  of  arsenious  acid  is  not  always 
distinguishable  by  the  eye ;  and  the  antimonial  deposit  gives  a 
white  amorphous  sublimate,  which,  however,  is  quite  insoluble  in 
water.  Care  must  be  taken  not  to  mistake  minute  spherules  of 
water,  mercury,  or  muriatic  acid  for  detached  crystals  of  arsenious 
acid ;  and  here  the  microscope  will  be  found  of  great  service. 
The  facility  of  applying  Reinsch's  process  renders  it  necessary 
that  the  experimentalist  should  be  guarded  by  his  inferences.  It 
is  not  merely  by  the  production  of  a  deposit  on  copper  that  he 
judges  of  the  presence  of  arsenic :  but  by  the  conversion  of  this 
deposit  to  arsenious  acid,  demonstrable  by  its  crystalline  form  and 
its  chemical  properties.  If  a  deposit  take  place  on  copper,  and 
arsenious  acid  can  not  be  obtained  by  heating  it,  then  the  evi- 
dence of  its  having  been  caused  by  arsenic  is  insufficient.  Owing 
to  the  neglect  of  these  corroborative  results,  antimony  and  other 
substances  have  been  occasionally  mistaken  for  arsenic.  Bismuth, 
silver,  mercury,  gold,  and  platina,  are  deposited  on  copper  from 
diluted  solutions  under  similar  circumstances :  the  four  last-men- 
tioned metals  being  rapidly  deposited  in  a  cold  acidulated  solution. 
The  deposits  of  the  three  first  metals  have  a  silvery  white 
appearance,  quite  unlike  that  of  arsenic,  and  the  only  volatile 
metal  among  them  is  mercury,  which  is  sublimed  in  the  form  of 
bright  metallic  globules,  visible  to  the  naked  eye,  or  by  the  aid 
of  a  lens  or  microscope.  Gold  produces  a  yellowish  or  bronze- 
colored  deposit.  Platina  produces  a  deposit  like  arsenic,  but  it 
is  fixed :  no  sublimate  can  be  obtained  from  it.  An  alkaline 
sulphuret,  or  sulphuretted  hydrogen,  if  present,  as  in  a  putrescent 
liquid,  may  give  a  tarnish  to  copper ;  but  this  is  a  fixed  stain  of 
sulphuret  of  copper.  All  objections  are  at  once  answered  by  the 
production  of  a  crystalline  sublimate,  and  the  chemical  proofs  of  its 
properties.  The  above  facts  show  that  a  mere  deposit  or  tarnish 
-on  copper  can  not  be  relied  on  as  a  .proof  of  the:presence  of  arsenic. 


480  MEDICAL   EVIDENCE. 

Delicacy  of  Reinsdis  process. — This  test  failed  to  detect  the 
4000th  part  of  a  grain  of  arsenic  in  thirty  drops  of  water,  the 
dilution  being  equal  to  120,000  times  the  weight  of  the  arsenic. 
The  deposit  on  copper  commenced  with  a  purplish-colored  film, 
when  the  quantity  of  arsenious  acid  was  equal  to  the  3000th 
part  of  a  grain  in  thirty  drops  of  water,  or  under  a  dilution  of 
90,000  times  its  weight.  It  was  very  decided  with  the  2000th 
part  of  a  grain  in  the  same  quantity  of  water,  but  in  neither  of 
these  cases  could  octahedral  crystals  of  arsenious  acid  be  obtained 
by  heating  the  copper.  The  following  experiments  will  show  how 
this  test  is  liable  to  be  affected  by  dilution :  The  copper  was 
coated  in  a  few  seconds,  when  boiled  in  a  solution  containing  the 
4000th  part  of  a  grain  in  ten  drops  of  water,  although  the  test 
had  failed  to  detect  the  same  weight  of  arsenic  in  three  times  that 
quantity  of  water.  So,  again,  the  2160th  part  of  a  grain  in 
thirty  drops  of  water  gave  an  arsenical  deposit  on  copper;  while 
the  same  quantity  in  half  an  ounce  of  water,  did  not  produce 
any  change  of  color  in  the  metal.  By  concentrating  a  diluted 
solution  with  the  copper  immersed  in  it,  we  shall,  sooner  or  later, 
secure  a  deposit  of  the  arsenic  and  at  the  came  time  prevent  it 
from  escaping  in  vapor  as  chloride  of  arsenic.  The  deposit  ad- 
heres with  great  firmness  to  the  copper  gauze.  In  examining 
one  of  these  deposits  after  it  had  been  loosely  wrapped  in  paper 
for  a  period  of  nearly  fourteen  years,  I  found  it  of  a  brownish- 
black  color  and  iridescent:  the  eighth  of  a  square  inch,  when 
heated,  still  gave  a  well-marked  ring  of  octahedral  crystals  of 
arsenious  acid. 

There  can  be  no  doubt  that  Marsh's  process  will  enable  an 
operator  to  detect  a  smaller  quantity  of  arsenic  than  that  of 
Keinsch ;  but  when  Reinsch's  process  fails  to  detect  arsenic,  it 
would  be  hardly  safe  to  trust  to  the  evidence  furnished  by  the 
process  of  Marsh  alone.  Our  law  authorities  have  not  yet  been 
inclined  to  receive  with  favor  chemical  evidence  when  it  is  based 
on  the  fiftieth  or  the  one  hundred  thousandth  part  of  a  grain,  and 
the  numerous  mistakes  respecting  normal  and  cemetery  arsenic, 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  481 

which  have  owed  their  origin  to  too  great  a  reliance  on  Marsh's 
process,  are  a  justification  of  this  distrust. 

Arsenic  in  liquids  containing  organic  matter. — Arsenious  acid, 
when  in  a  state  of  solution,  is  not  liable  to  be  precipitated  by 
any  animal  or  vegetable  principles,  although  all  such  substances 
render  it  less  soluble  in  water.  The  liquid  for  analysis  should 
be  filtered  through  muslin,  cotton,  or  paper,  in  order  to  separate 
any  insoluble  matters.  Should  it  be  colored,  this  is  of  little 
moment,  provided  it  be  clear.  If  viscid,  it  should  be  diluted 
with  water  and  boiled  with  a  small  quantity  of  muriatic  acid ;  on 
standing,  a  deposit  may  take  place,  and  this  should  be  separated 
by  a  filter.  A  portion  of  the  original  liquid  before  boiling  should 
always  be  filtered  and  tested  for  arsenic,  in  order  to  determine 
whether  any  of  the  poison  is  present  in  a  state  of  solution. 

As  a  trial-test,  we  may  boil  in  a  portion  of  the  liquid,  strongly 
acidulated  with  pure  muriatic  acid,  a  small  piece  of  copper  gauze 
fixed  to  the  end  of  a  fine  and  polished  copper  wire.  In  a  few 
seconds,  if  arsenic  be  present,  the  copper  will  acquire  a  gray 
metallic  coating.  If,  after  half  an  hour,  the  copper  remain 
unchanged,  the  arsenic,  if  present,  must  be  in  extremely  minute 
proportion ;  if,  on  the  other  hand,  the  copper  be  covered  by  a 
gray  deposit,  it  should  be  dried  and  heated  in.  a  reduction-tube  in 
the  manner  already  described.  From  several  such  slips  of  copper, 
or  copper  gauze,  a  quantity  of  metallic  arsenic  may  be  procured, 
sufficient,  on  reconversion  to  arsenious  acid,  to  allow  either  of  a 
solution  in  water  being  made,  to  which  all  the  liquid  tests  may 
be  applied,  or  of  its  conversion  by  nitric  acid  to  arsenic  acid. 
Some  organic  matter  may  be  deposited  in  the  meshes  of  the 
gauze ;  this  may  be  removed,  after  washing  in  water,  by  warming 
the  gauze  in  alcohol,  or  immersing  it  in  ether  or  chloroform ;  it 
should  be  again  washed  in  water  and  dried  before  heat  is  applied 
to  it.  When  much  oily  matter  is  present,  it  is  better  to  boil  the 
organic  substance  with  diluted  muriatic  acid,  strain  the  liquid 
from  it,  through  calico,  and  filter  it  through  a  wet  filter  before 
introducing  the  copper  gauze.  An  even  coating  of  arsenic  was 
31 


482  MEDICAL   EVIDENCE. 

by  this  process  obtained  on  copper  gauze  from  the  decomposed 
tissue  of  the  stomach  of  a  person  who  had  been  buried  nearly 
two  years.  As  the  gauze  is  remarkably  hygrometric,  it  always 
requires  to  be  thoroughly  dried  in  a  warm  current  of  air  before 
it  is  submitted  to  heat  in  a  reduction-tube.  The  arsenical  nature 
of  the  deposit  on  copper  must  be  then  established  by  the  micro- 
scope and  the  tests  already  described.  In  a  fine  sublimate,  derived 
from  some  hay  in  the  stomach  of  a  horse  that  had  been  killed 
by  arsenic,  I  counted  twenty-eight  distinct  crystals  of  arsenic 
(arsenious  acid),  in  a  space  the  l-2000th  of  an  inch  square. 
The  greater  number  of  these  crystals  had  a  diameter  of  the 
l-2000th  of  an  inch;  some  distinct  octahedra,  which  had  a 
diameter  less  than  the  l-4000th  of  an  inch,  were  recognized 
among  them. 

By  this  process,  the  144th  part  of  a  grain  of  arsenic  was 
detected  in  two  fluid-drachms  of  gruel,  milk,  porter,  and  other 
organic  liquids,  in  so  many  different  experiments.  It  was  also 
thus  easily  separated  from  wine,  brandy,  the  liquid  contents  of 
the  stomach,  the  blood,  and  the  tissues  of  the  viscera.  Here 
our  analysis  might  be  closed,  if  the  object  were  to  determine  only 
the  presence  of  arsenic,  since  a  case  can  rarely  occur  in  Medico- 
legal  practice,  in  which  it  would  be  necessary  to  extract  the  ivhole 
of  the  poison  from  the  contents  of  the  stomach  or  intestines,  or 
from  all  parts  of  the  body. 

Another  process  for  procuring  evidence  of  the  presence  of  this 
poison  in  liquids,  consists  in  transforming  the  arsenious  acid  to 
the  state  of  sulphuret,  by  a  current  of  sulphuretted  hydrogen. 
The  liquid  should  be  first  boiled,  a  little  diluted  muriatic  acid 
added,  and  then  filtered  to  separate  organic  matters.  This  object 
may  be  further  accomplished  by  adding  to  the  filtered  liquid, 
when  cold,  one-third  of  its  bulk  of  alcohol,  again  filtering  and 
concentrating  the  liquid  by  evaporation.  Sulphuretted  hydrogen 
gas  may  now  be  freely  passed  into  the  liquid  acidulated  with 
either  of  the  acids  mentioned.  When  the  precipitation  has 
ceased,  the  liquid  should  be  filtered,  the  precipitate  collected,  and 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  483 

dissolved  in  ammonia  to  separate  it  from  organic  matter ;  it  may 
then  be  obtained  by  evaporating  the  ammonia.  That  the  yellow 
compound  is  sulphuret  of  arsenic  may  now  be  proved  by  the 
tests  elsewhere  described.  The  sulphur  process  succeeds  only 
when  the  quantity  of  arsenic  is  large. 

Arsenic  is  soluble  in  oil.  It  may  require  analysis  either  in 
this  state,  or  mechanically  diffused  in  fat,  butter,  tallow,  or  similar 
substances.  From  these  mixtures  it  may  be  separated  by  boiling 
them  in  a  sufficient  quantity  of  water,  with  about  one-tenth  part 
of  muriatic  acid.  The  aqueous  solution  may  then  be  freed  from 
the  oil  or  fat  by  passing  it  through  a  filter  previously  saturated 
with  water,  and  the  arsenic  obtained  by  sulphuretted  hydrogen, 
or  by  Reinsch's  process. 

Contents  of  the  stomach — Vomited  matters. — The  contents  of 
the  stomach  are  often  mixed  with  lumps  of  arsenic,  which  m;iy 
be  separated  by  throwing  those  portions  that  do  not  pass  through 
a  filter  into  a  large  glass  of  distilled  water,  and  after  giving  to 
it  a  circular  motion,  suddenly  pouring  off  the  supernatant  liquid, 
when  the  heavy  portions  containing  arsenic  will  be  found  at  the 
bottom.  The  lumps  may  sometimes  be  left  in  the  contents ;  they 
may  then  be  easily  removed,  dried  on  filtering  paper,  and  tested. 
If  the  arsenic  has  been  taken  in  fine  powder,  there  will  be  no 
lumps,  but  it  will  probaby  be  deposited  in  masses,  mixed  with 
mucus  and  blood,  on  the  coats  of  the  organ  in  those  parts  where 
it  is  much  inflamed  and  ulcerated.  The  arsenic  in  this  state 
looks  like  moistened  plaster  of  Paris,  but  it  is  of  a  darker  color, 
and  when  examined  by  a  lens  it  is  crystalline.  It  may  be  re- 
moved on  a  spatula,  spread  in  masses  on  filtering  paper,  and 
slowly  dried.  As  it  dries,  the  granules  will  detach  themselves 
from  the  mass.  It  is  necessary  to  examine  the  arsenic  carefully, 
with  a  view  of  determining  whether  the  white  particles  are  or  are 
not  mixed  with  either  of  the  coloring  matters  required  by  the 
Act  of  Parliament, — indigo  or  soot.  The  microscope  should 
here  be  used  for  the  examination  of  the  dried  sediment,  and 
after  this  examination  it  may  be  tested  either  by  the  reduc- 


484:  MEDICAL   EVIDENCE. 

tion  test  or  by  Reinsch's  process.  The  suspected  particles,  or 
even  the  stained  portions  of  paper  on  which  the  organic  matter 
has  become  dried,  may  be  boiled  with  muriatic  acid  and  copper 
gauze.  Mucus,  blood,  or  even  a  layer  of  the  mucous  membrane 
of  the  stomach  may  be  thus  easily  tested.  This  is  in  general 
the  only  method  which  it  is  now  necessary  to  employ.  By  the 
use  of  numerous  tests  and  processes,  a  witness  exposes  his  evi- 
dence most  unnecessarily  to  many  ingenious  objections.  It  is 
sufficient  to  obtain  tha  deposit  on  copper;  to  convert  this  by 
heat  to  crystallized  arsenious  acid,  and  to  test  the  sublimate.  We 
thus  avoid  the  troublesome  and  complex  method  of  separating 
organic  matter  from  arsenic.  Care  must  be  taken  in  examining 
a  stomach  not  to  confound  pieces  of  bread,  or  lumps  of  fat  or 
adipocere  with  arsenic.  Small  portions  of  such  substances  appear 
very  much  like  lumps  of  the  poison.  In  the  stomachs  of  exhumed 
bodies  a  crystalline  substance  is  found,  resembling  arsenic  in 
appearance,  but  not  in  properties.  It  is  the  ammonio-phosphate 
of  magnesia  derived  from  putrefaction. 

The  liquid  contents  may  yield  no  arsenic,  although  the  poison 
is  present.  I  have  found  solid  arsenic  spread  over  the  coats  of 
the  stomach  in  two  cases,  when  the  liquid  contents  yielded  no 
traces  of  the  poison  in  solution.  In  the  same  way  I  have  de- 
tected no  arsenic  dissolved  in  tea  when  it  was  abundant  in  the 
sediment.  If  none  should  be  found  either  dissolved  in  the  contents 
of  the  stomach  or  on  the  surface  of  the  organ,  we  must  remove 
the  inflamed  and  ulcerated  portions  of  the  mucous  coat,  or  even 
the  whole  of  the  stomach  cut  into  small  pieces,  and  boil  the  cut 
portions  with  diluted  muriatic  acid  and  copper  for  half  an  hour. 
The  liquid  may  be  then  filtered  and  tested.  It  may  happen  that 
no  arsenic  will  be  detected  in  the  contents  of  the  stomach  or 
vomited  matters,  until  after  they  have  been  boiled  for  at  least  one 
or  two  hours,  and  the  org.mic  matter  broken  up. 

Detection  of  absorbed  arsenic  in  the  tissues. — When  arsenic 
can  not  be  detected  in  the  liquid  contents  of  the  stomach,  it  is 
necessary  to  examine  the  blood,  secretions,  muscles,  or  viscera 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  485 

of  the  deceased  for  that  portion  of  the  poison  which  has  been 
absorbed.  In  most  cases  of  acute  poisoning,  arsenic  will  be  found, 
but  in  variable  quantities,  in  every  one  of  the  soft  structures  of 
the  body, — more  abundantly  in  the  organs  of  the  abdomen  than 
elsewhere.  In  general  a  medical  witness  has  it  in  his  power  to 
make  a  selection ;  but  even  here  criminal  ingenuity  may  be  exerted 
to  defeat  his  evidence.  In  a  case  tried  in  France,  in  1 846,  the 
body  of  a  man  named  Gloeckler,  who  was  alleged  to  have  died 
from  poison  administered  by  his  wife,  had  been  clandestinely 
removed,  and  thrown  into  the  soil  of  a  privy,  where  it  was  subse- 
quently found.  The  abdomen  had  been  opened,  and  the  organs 
removed,  with  the  intention  of  obliterating  all  traces  of  the 
criminal  act  which  had  been  perpetrated.  The  proof  of  crimin- 
ality rested  entirely  upon  the  chemical  evidence,  for  the  symp- 
toms were  not  well  marked.  It  was  clearly  shown  at  the  trial, 
that  the  wound  in  the  abdomen  had  been  made  after  death ;  and 
arsenic  was  readily  extracted  from  the  soft  parts  of  the  body  in 
sufficient  quantity  to  be  weighed.  The  accused  was  convicted. 
From  this  account,  it  will  be  perceived,  that  but  for  the  process 
of  detecting  arsenic  in  the  tissues,  this  crime  must  have  passed 
undetected  and  unpunished.  Except  by  the  entire  destruction 
of  the  body  in  a  case  of  arsenical  poisoning,  a  criminal  can  not 
now  defeat  the  objects  of  a  chemical  investigation.  Dr.  Schafter 
met  with  a  case  in  which  an  attempt  was  made  by  the  accused  to 
destroy  the  dead  body  by  fire.  A  woman  had  suffered  from 
symptoms  of  poisoning  by  arsenic,  and  died  in  about  eight  hours. 
Notice  was  given  to  the  husband  that  there  would  be  an  inspec- 
tion of  the  body,  and  on  the  next  night  his  house  was  found  in 
flames.  The  dead  body  of  the  wife  was  so  burnt  that  it  could 
scarcely  be  recognized.  The  stomach,  however,  had  not  been 
•entirely  destroyed,  and  in  the  shrivelled  remains  of  this,  some 
particles  of  solid  arsenic  were  found.  The  facts  were  clearly 
proved  against  the  husband. 

In  the  case  of  the  Queen  v.  Hunter,  tried  at  the  Liverpool 
Spring  Assizes,  1843,  arsenic  could  not  be  detected  in  the  con- 


486  MEDICAL  EVIDENCE. 

tents  of  the  stomach  and  bowels ;  as  no  analysis  was  made  for 
absorbed  arsenic,  the  benefit  of  the  omission  was  given  to  the 
accused  person.  In  the  case  of  the  Queen  v.  Thomas,  no  arsenic 
was  found  in  the  contents  of  the  stomach  and  intestines  of  one 
of  the  deceased  persons ;  but  the  poison  is  stated  to  have  been 
detected  in  the  liver  by  the  coarse  process  of  incineration  with 
nitre.  This  evidence,  although  attacked  in  cross-examination  on 
the  ground  (now  refuted)  that  arsenic  was  a  natural  constituent 
of  the  body,  was  received  as  a  satisfactory  proof  of  the  presence 
of  the  pjison.  There  are  few  cases  in  which  this  branch  of  the  an- 
atysis  should  not  be  resorted  to,  although  it  entails  much  additional 
trouble.  The  detection  of  arsenic  in"  the  tissues  makes  it  clear, 
under  the  limitations  elsewhere  pointed  out,  that  the  poison  must 
have  been  introduced  during  life,  and  that  it  has  most  probably 
caused  death ;  its  detection  merely  in  the  contents  of  the  stomach 
or  intestines,  does  not  give  this  absolute  proof.  Beside,  the 
poison  found  in  these  contents  is  not  that  which  has  caused 
death ;  this,  as  it  has  been  elsewhere  stated,  must  be  referred  to 
the  portion  of  poison  which  has  entered  the  blood  by  absorption. 
It  is  worthy  of  remark  that  under  the  Medical  Witnesses'  Act 
(6  and  7  William  IV,  c.  Ixxxix),  a  medical  practitioner  is  only 
required  to  make  "an  analysis  of  the  contents  of  the  stomach  or 
intestines,"  and  for  this  only  is  a  fee  allowed ! 

The  process  commonly  employed  for  the  discovery  of  arsenic 
in  the  tissues,  are  those  of  Marsh  and  Reinsch ;  and  Marsh's 
process  has  been  almost  universally  employed  by  continental  and 
English  chemists.  When  an  organic  liquid,  containing  arsenic, 
is  placed  in  the  apparatus,  there  is  a  frothiness  produced  which 
interferes  with  the  combustion  of  the  arsenuretted  hydrogen. 
Various  plans  have  been  proposed  to  remove  this  inconvenience 
by  destroying  the  organic  matter,  and  procuring  the  arsenic  in  a 
form  convenient  for  testing.  In  1839,  Orfila  suggested  the  de- 
flagration of  the  organic  matter  (brought  to  a  state  of  dryness) 
with  powdered  nitre.  He  subsequently  advised  that  the  organic 
matter,  finely  cut  up,  should  be  boiled  in  a  weak  solution  of 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  487 

potash,  and  mixed  with  twice  its  weight  of  pure  powdered  nitre. 
The  saline  residue  obtained  on  evaporation  was  then  deflagrated 
by  projection  in  small  quantities  in  a  red  hot  crucible.  Another 
of  his  plans  consisted  in  decomposing  the  organic  matter  by 
strong  nitric  acid, — bringing  it  to  the  state  of  a  dry  carbonaceous 
mass, — and  acting  on  this  by  nitre-muriatic  acid.  The  arsenic 
was  subsequently  dissolved  by  water,  and  then  placed  in  the 
apparatus.  These  processes  occasioned  a  great  loss  of  arsenic, 
and  they  had  the  disadvantages  that  the  presence  of  any  nitric 
acid  or  a  nitrate  interfered  with  the  production  of  arsenuretted 
hydrogen.  MM.  Danger  and  Flandin  recommended  the  com- 
plete carbonization  of  the  organic  matter  by  heating  it  in  a  quan- 
tity of  strong  sulphuric  acid  (proved  to  be  free  from  arsenic), 
equal  to  about  one-third  of  the  weight.  It  thus  forms  a  tarry- 
looking  mixture,  which  should  be  brought  to  dryness.  The  dry 
carbonaceous  mass  is  then  treated  on  the  plan  recommended  by 
Oifila.  The  vapors  evolved  during  this  operation  are  of  the 
most  offensive  and  persistent  description. 

If  sulphuric  acid  can  be  obtained  pure,  there  is  no  doubt  that 
this  is  the  best  mode  of  carbonizing  organic  matter.  The  car- 
bonaceous ash  should  not  be  too  strongly  heated,  or,  as  pointed 
out  by  Blondlot,  there  will  be  a  loss  of  arsenic.  It  will  be  found 
better  for  the  conversion  of  the  arsenious  into  arsenic  acid,  to  use 
strong  nitric  in  preference  to  nitro-muriatic  acid,  as  this  will  avoid 
the  volatilization  of  arsenic  as  chloride.  After  heating  the  mix- 
ture to  expel  the  greater  part  of  the  nitric  acid,  the  ash  may  be 
drenched  with  water,  until  all  that  is  soluble  is  removed.  This 
may  be  brought  to  dryness  in  a  porcelain  vessel,  and  again 
treated  with  nitric  acid  several  times,  until  the  residue  is  without 
color.  The  acid  residue  dissolved  in  water  should  be  neutralized 
by  pure  carbonate  of  potash,  and  when  again  brought  to  dryness, 
the  arseniate  of  potash  thus  produced  (if  arsenic  were  present) 
may  be  separated  from  the  other  salts  by  a  small  quantity  of 
water.  This  solution  may  be  introduced  into  Marsh's  apparatus. 
If  a  deposit  of  metal  is  obtained  on  glass,  or  porcelain,  or  a  ring 


488  MEDICAL   EVIDENCE. 

of  metal  in  a  tube,  by  heating  the  current  of  gas,  these  must  be 
tested  by  the  methods  already  suggested.  When  Marsh's  pro- 
cess is  employed,  I  have  found  this  to  be  the  best  plan  of  pro- 
ceeding for  destroying  organic  matters  and  avoiding  a  loss  of 
arsenic. 

In  the  event  of  Reinsch's  process  being  selected  at  this  stage, 
it  will  be  necessary  to  reconvert  the  arsenic  acid,  obtained  by  the 
above-mentioned  carbonizing  process,  to  arsenious  acid.  This  is 
effected  by  evaporating  it  to  dryness  with  a  strong  solution  of 
sulphurous  acid. 

Fresenius  and  Babo  destroy  the  organic  matter  by  hydrochloric 
acid  and  chlorate  of  potash,  and  advise  a  series  of  proceedings 
of  a  most  minute  and  elaborate  kind.  In  fact,  this  mode  of 
detecting  arsenic  may  be  designated  an  exhaustive  process.  It 
provides  for  the  exclusion  of  lead,  bismuth,  mercury,  copper, 
tin,  antimony  and  other  metals ;  but  in  thus  excluding  many 
bodies  which  are  never  likely  to  be  found,  it  encumbers  the  in- 
vestigation with  the  employment  of  so  many  chemicals,  that  a 
question  might  fairly  arise  whether  arsenic  had  not  been  actually 
introduced  into  the  organic  matter  during  the  operation.  I  have 
known  only  one  case  in  which  it  has  been  Medico-legally  em- 
ployed in  this  country,  that  of  Reg.  v.  Wooler,  and  there  fortu- 
nately the  proof  of  death  from  arsenic  was  so  clearly  made  out 
from  other  facts,  that  it  was  unnecessary  to  make  this  elaborate 
mode  of  testing  a  subject  of  cross-examination.  The  reader  who 
is  curious  about  this  process,  the  complication  of  which,  according 
to  Orfila,  surpasses  all  credibility,  will  find  the  details  in  Orfila. 

Reinsctts  process. — I  have  found  that  Reinsctis  process,  with- 
out any  preliminary  carbonization,  is  well  adapted  for  the  separ- 
ation of  absorbed  arsenic.  I  have  by  it  separated  arsenic  from 
all  the  organs  of  the  body,  excepting  the  brain  and  spinal  marrow. 
The  organ  suspected  to  contain  deposited  arsenic,  is  cut  into  the 
thinnest  pieces.  It  is  then  digested  at  a  gentle  heat,  with  a  mix- 
ture of  one  part  by  measure  of  muriatic  acid  (proved  to  be  free 
from  arsenic),  and  eight  parts  of  water.  When  the  structure  of 


TAYLOR'S  ANALYSIS  OF  AR?ENIC.  489 

the  organ  is  broken  up,  a  piece  of  copper  gauze,  at  the  end  of  a 
fine  and  polished  copper  wire,  is  put  into  the  vessel,  and  the 
liquid  brought  to  the  boiling-point.  If  no  deposit  takes  place  in 
a  few  minutes,  a  little  more  muriatic  acid  may  be  added.  If 
after  half  an  hour,  there  is  no  change  of  color  in  the  wire  or 
gauze,  there  is  probably  no  arsenic  present.  The  liquid  may 
now  bo  boiled  down  on  the  copper,  and  the  metal  again  washed 
and  examined.  The  quantity  of  gauze  used  must  be  small,  until 
there  is  clear  evidence  of  a  free  deposit,  and  then  a  number  of 
pieces  may  be  successively  added  until  the  arsenic  ceases  to  be 
deposited.  The  pieces  of  gauze  which  are  coated,  should  be  well 
washed  in  water,  and  if  necessary  in  alcohol,  to  separate  adhering 
organic  matter.  They  may  then  be  tested  for  arsenic  by  the 
processes  already  described.  The  only  precaution  required  here, 
is  that  the  muriatic  acid  should  be  pure.  The  water,  the  copper, 
the  acid,  and  the  vessel,  may  be  tested  for  arsenic  before  the 
addition  of  the  substance  supposed  to  contain  it. 

In  January,  1852,  six  ounces  of  a  thick  turbid  fluid  were 
taken  from  the  stomach  of  a  dog  supposed  to  have  been  poisoned. 
As  there  was  no  poison  present, — the  copper  gauze  remaining 
unchanged  in  color,  five  drops  of  a  solution  of  white  arsenic, 
equivalent  to  ('06)  six  hundredths  of  a  grain-  of  the  poison,  were 
put  into  the  mixture,  and  the  whole  was  well  stirred.  In  ten 
minutes  the  copper  was  coated  of  a  steel-blue  color,  and  crystals 
were  obtained  from  it  by  heat  The  16th  part  of  a  grain  of 
arsenic  was  here  detected,  in  about  forty  thousand  times  its 
weight  of  a  complex  organic  liquid. 

Sometimes  the  red  color  of  the  copper  is  seen,  owing  to  the 
thinness  of  the  arsenical  deposit.  In  all  cases  it  is  advisable  to 
dry  the  gauze,  to  heat  a  portion  of  it  in  a  reduction-tube,  and 
examine  the  sublimate,  if  any,  by  the  microscope,  before  giving 
an  opinion  that  arsenic  is  absent. 

Either  of  these  processes  will  enable  the  analyst  to  separate 
arsenic  from  the  tissues.  By  Marsh's  process  he  can  accumulate 
in  a  porcelain  capsule,  in  a  state  convenient  for  testing,  any 


490  MEDICAL    EVIDENCE. 

number  of  metallic  deposits.  In  reference  to  Reinsch's  process, 
as  soon  as  the  copper  is  covered  by  arsenic,  the  chemical  effect 
ceases :  the  use  of  gauze  allows  the  operator  to  concentrate  a 
large  quantity  of  arsenic  in  a  small  space.  This  yields  a  ring 
of  crystals  sufficient  for  testing,  or  it  may  be  made  so  by  heating 
a  number  of  pieces  successively.  There  can  be  no  doubt  that 
Reinsch's  process  is  the  most  simple,  and  the  least  open  to  objec- 
tion in  respect  to  the  casual  introduction  of  arsenic,  as  neither 
zinc  nor  sulphuric  acid  is  required.  It  has  also  this  advantage ; 
while  searching  for  arsenic  in  the  tissues,  it  enables  the  operator 
to  discover  and  separate  at  the  same  time  both  mercury  and 
antimony,  without  interfering  with  the  search  for  arsenic. 

There  is  no  doubt  that  a  portion  of  arsenic  is  lost  by  either 
process,  and  from  the  researches  of  Dr.  Geoghegan,  it  appears 
that  but  little  more  than  one-half  of  the  arsenic  deposited  011 
copper  in  Reinsch's  process  can  be  reobtained  by  sublimation  in 
the  crystalline  state,  the  rest  being  retained  as  arsenuret  of  copper. 
So  in  the  combustion  of  arsenuretted  hydrogen  in  Marsh's  pro- 
cess, there  is  an  unavoidable  loss  of  arsenic  on  each  occasion  that 
the  jet  is  opened.  Either  process  is,  however,  so  delcate,  that 
even  making  due  allowance  for  loss  of  the  poison,  the  arsenic  will 
be  easily  revealed  when  forming  riot  more  than  from  the  1-1 50th 
to  the  200th  part  of  a  grain,  and  this  is  itself  a  point  of  delicacy 
in  an  analysis  which,  when  the  issues  of  life  and  death  are  in- 
volved, might  almost  suffice  to  justify  a  reasonable  distrust  of 
the  resources  of  science.  Orfi'a  professed  to  have  detected  the 
2,000,000th  of  a  grain  by  Marsh's  process,  but  the  smallest 
quantity  on  which  he  ever  ventured  to  give  evidence  before  a  legal 
tribunal  was  in  the  well-known  case  of  Madame  Laftarge.  His 
evidence,  however,  was  strongly  objected  to.  He  admitted  that 
the  quantity  which  he  obtained  from  the  body  of  the  deceased 
was  too  small  to  be  weighed,  but  estimated  it  roughly  at  half  & 
milligramme,  i.  e.  about  the  one  hundred  and  thirtieth  part  of  a 
grain  !  In  this  country,  I  am  not  aware  that  chemical  evidence 
of  the  presence  of  arsenic  in  a  dead  body  has  ever  been  based 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  491 

on  a  smaller  quantity  than  in  the  case  of  Margaret  Wishart. 
Dr.  Christison  did  not  detect  more  than  the  one-fortieth  part  of 
a  grain  of  arsenic  in  the  coats  of  the  stomach ;  but  this  was 
deemed  sufficient  chemical  evidence,  and  the  prisoner  was  con- 
demned and  executed.  The  smallest  quantity  on  which  I  have 
had  occasion  to  give  evidence  in  criminal  trials,  was  from  half  a 
grain  to  a  grain,  estimated  as  the  quantity  actually  obtained  in 
crystals  from  the  stomach,  intestines,  and  tissues.  In  these  two 
cases,  the  accused  were  tried  and  convicted  on  the  charge  of 
administering  poison  with  intent  to  murder.  The  cause  of  death 
was  not  here  at  issue. 

Nevertheless  there  is  a  strong  prejudice  among  lawyers  that 
the  chemical  evidence  is  defective  unless  the  quantity  found  is 
sufficient  to  cause  death.  The  irrelevancy  and  the  absurdity  of 
such  a  proposition,  in  a  medical  point  of  view,  has  been  elsewhere 
pointed  out.  It  would  be  just  as  reasonable,  in  a  case  in  which 
a  man  had  been  killed  by  a  discharge  of  small  shot,  to  insist 
upon  a  failure  of  proof  of  the  cause  of  death,  because  only  a 
single  pellet  had  been  found  on  the  body.  The  value  of  chemical 
evidence  does  not  depend  on  the  discovery  of  any  particular 
quantity  of  poison  in  the  stomach, — it  is  merely  necessary  that 
the  evidence  of  its  presence  should  be  clear,-  distinct,  conclusive, 
and  satisfactory.  At  the  same  time  a  reasonable  objection  may 
be  taken  to  a  dogmatic  reliance  upon  the  alleged  discovery  in  a 
dead  body  of  minute  fractional  portions  of  a  grain ;  and  consider- 
ing the  great  liability  to  fallacy  from  the  accidental  presence  of 
arsenic  in  the  articles  used,  the  chemical  evidence  in  the  case  of 
Laffarge  was  of  a  most  unsatisfactory  kind,  and  should  have  been 
rejected  by  the  court.  No  man  with  any  respect  for  his  character, 
or  for  the  common  sense  of  a  jury,  would  base  chemical  evidence 
on  the  thousandth,  or  less  than  the  thousandth  part  of  a  grain  of 
poison  in  a  case  of  life  and  death ;  although  he  may  make  use 
of  his  alleged  power  to  detect  this,  or  even  a  smaller  quantity,  for 
the  purpose  of  procuring  the  acquittal  of  a  notorious  criminal. 
QUANTITATIVE  ANALYSIS. — The  quantity  of  arsenic  met  with  in 


492  MEDICAL   EVIDENCE. 

a  free  state  in  the  stomach  and  bowels  after  death,  is  subject  to 
great  variation.  The  quantity  found  has  varied  from  half  a  grain 
to  two  ounces,  or  960  grains.  The  circumstances  which  affect 
this  quantity  have  been  elsewhere  considered.  In  dealing  with 
a  liquid  article  of  food  or  with  the  contents  of  a  stomach,  assum- 
ing that  the  arsenic  is  dissolved,  we  pursue  the  same  plan.  In 
some  cases,  solid  arsenic,  in  lumps  or  powder,  may  be  separated 
by  washing  from  the  contents.  In  this  case  we  simply  collect  it, 
dry  it,  and  weigh  it.  A  measured  portion  (one-fourth  or  one- 
sixth)  of  the  liquid  should  be  acidulated  with  diluted  muriatic 
acid,  boiled  and  filtered.  A  current  of  sulphuretted  hydrogen 
may  now  be  passed  into  it,  until  there  is  no  longer  any  precipi- 
tation. The  liquid  should  be  again  boiled,  and  the  precipitated 
sulphuret  of  arsenic  collected  by  decantation  or  on  a  filter,  and 
thoroughly  washed.  While  still  moist,  it  may  be  dissolved  in 
ammonia,  and  the  ammoniacal  liquid  filtered  into  a  balanced  cap- 
sule, from  which  the  ammonia  may  be  driven  off  by  evaporation. 
The  sulphuret  of  arsenic  dried  at  212°  may  now  be  weighed, 
and  as  every  hundred  grains  of  shulphuret  represents  eighty  grains 
of  white  arsenic  (100  :  80-4),  the  quantity  of  the  latter  may  be 
found  sufficiently  close  for  practical  purposes  in  multiplying  the 
weight  of  the  precipitate  by  4  and  dividing  the  product  by  5. 

When  we  are  dealing  with  the  tissues,  the  quantity  of  arsenic 
is  generally  too  small  for  the  application  of  this  method.  In  all 
cases,  the  deposited  arsenic  is  in  very  small  proportions,  rarely 
exceeding  a  few  grains  in  an  organ  like  the  liver  weighing  four  or 
five  pounds ;  and,  according  to  Flandin,  although  this  statement 
is  not  in  accordance  with  the  experience  of  others,  nine-tenths  of 
the  deposited  arsenic  are  found  in  the  liver,  the  other  tenth  being 
unequally  diffused  through  the  other  organs.  As  a  general  rule, 
the  liver  will  be  found  to  contain  the  largest  proportion,  and  next 
to  this  the  spleen  and  kidneys,  the  heart  and  muscles  contain- 
ing the  smallest  proportion.  I  have  sometimes  found  none  in 
the  liver,  while  it  has  been  present  in  the  other  organs,  and  even 
in  the  bile  contained  in  the  gall-bladder. 


TAYLOR'S  ANALYSIS  OF  ARSENIC.  493 

In  order  to  determine  the  proportion  of  absorbed  arsenic  in  an 
organ  (e.  g.  the  liver),  which,  under  any  circumstances,  can  be 
done  only  approximately,  we  take  a  weighed  quantity  (four 
ounces),  slice  it,  and  treat  it  by  Reinsch's  process,  separate  the 
whole  of  the  arsenic  by  copper  gauze,  and  determine  or  estimate 
the  weight  of  the  sublimates  obtained, — doubling  this  weight  to 
allow  for  the  unavoidable  loss,  and  calculating  from  the  quantity 
found  in  four  ounces,  the  quantity  diffused  through  the  whole  of 
the  liver.  Another  portion  of  liver  may  be  examined,  if  neces- 
sary, to  correct  the  result.  I  believe  that  the  quantity  thus 
determined  is  always  below  the  amount  actually  present.  Some 
prefer  the  determination  of  the  quantity  from  a  given  weight,  by 
passing  the  arsenuretted  hydrogen,  generated  in  Marsh's  appar- 
atus (by  the  process  heretofore  described),  into  a  weak  solution 
of  neutral  nitrate  of  silver,  until  there  is  no  longer  any  blacken- 
ing. The  arsenic  is  here  supposed  to  be  converted  entirely  to 
arsenic  acid ;  the  surplus  silver  is  cautiously  removed  by  hydro- 
chloric acid,  and  after  filtration  and  evaporation  to  dry  ness,  the 
arsenic  is  precipitated  from  the  residue  dissolved  in  water  by 
sulphuretted  hydrogen.  Another  plan  consists  in  passing  the 
arsenuretted  hydrogen  through  a  tube  of  infusible  glass,  dipping 
into  a  solution  of  chloride  of  gold,  and  when  air  is  expelled,  apply- 
ing heat  to  the  tube.  Metallic  arsenic  is  deposited,  and  any  por- 
tion of  gas  which  escapes  decomposition  is  collected  and  dissolved 
in  the  solution  of  gold,  which  it  decomposes.  The  quantity  thus 
obtained,  is  determined  by  a  process  similar  to  that  above-men- 
tioned. In  pursuing  these  methods,  there  may  be  a  loss  of  arse- 
nic in  carbonizing  and  heating  to  dryness  the  organic  matter  with 
sulphuric  acid ;  a  portion  of  arsenic  is  liable  to  be  separated  and 
deposited  in  the  apparatus  used ;  and  it  is  not  improbable  that  a 
portion  combines  with  the  reduced  silver  and  gold.1 

1  Taylor  on  Poisons. 


CHAPTER  XXXV. 

LEADING  ADJUDICATED  CASES  IN  ARSENICAL  POISONING. 
REX  «.  MARY  BLAND Y,  Tried  in  1752  j  Smith  Mod.  Ev.  198. 

THE  case  of  Mary  Blandy,  tried  at  Oxford,  for  the  murder  of 
her  father,  in  1752,  is  perhaps  the  oldest  case  of  arsenical  poison- 
ing of  importance  on  record,  where  we  have  a  complete  account 
of  the  medical  testimony. 

Dr.  Addington  testified  that  he  found  the  deceased,  when  he 
first  saw  him,  in  bed,  and  that  he  told  him,  that  after  drinking 
some  gruel,  he  had  perceived  an  extraordinary  grittiness  in  his 
mouth,  attended  with  very  painful  burning  and  pricking  in  the 
tongue,  throat,  stomach,  and  bowels,  and  with  sickness  and  grip- 
ings,  which  had  been  relieved  by  vomiting  and  purging.  That 
on  drinking  the  gruel  he  every  time  tasted  the  grittiness  and 
became  more  sick.  That  it  did  not  result  from  any  medicine  he 
had  taken.  His  tongue  was  swollen,  his  throat  raw,  his  bowels 
swoolen; — his  upper  lip  was  dry  and  rough,  and  had  angry 
pimples  on  it.  His  eyes  were  bloodshot ;  his  pulse  low,  trem- 
bling and  intermitting. 

He  told  Miss  Blandy  that  he  thought  her  father  had  taken 
poison :  she  said  it  was  impossible.  As  he  passed  out,  a  paper 
was  put  into  his  hands,  said  to  have  been  thrown  into  the  fire  by 
Miss  Blandy.  The  fire  had  not  consumed  it,  and  there  was  an 
inscription  on  it,  as  follows :  "  the  powder  to  clean  the  pebbles 
with."  The  paper  contained  arsenic.  The  same  kind  of  powder 
was  found  in  the  gruel. 

The  deceased  being  asked  if  he  thought  he  had  taken  poison, 

(494) 


LEADING   ADJUDICATED   CASES   IN   ARSENICAL   POISONING.        495 

and  if  so,  from  whom ;  said  he  thought  he  had,  and  from  "  a  poor, 
love-sick  girl.  I  forgive  her.  I  always  thought  there  was  mis- 
chief in  those  cursed  Scotch  pebbles."  The  deceased  continued 
to  grow  worse.  His  hands  trembled;  his  face  was  cold  and 
clammy ;  he  was  at  times  delirious ;  he  was  like  a  person  bit 
by  a  mad  dog;  he  wanted  to  drink,  but  could  not  swallow.  His 
symptoms  all  indicated  that  he  had  taken  white  arsenic.  Dr. 
Lewis  corroborated  Dr.  Addington  in  every  particular,  and  said 
it  was  his  absolute  opinion  that  the  deceased  died  of  poisoning  by 
arsenic. 

We  learn  from  this  trial,  the  process  of  detecting  arsenic,  one 
hundred  years  ago.  Dr.  Addington  was  asked  by  counsel,  on 
cross-examination,  how  he  knew  the  article  in  the  paper  was 
arsenic.  He  replied,  that:  1st,  This  powder  has  a  milky  white- 
ness, so  has  white  arsenic :  2d,  This  is  gritty,  and  almost  insipid, 
'so  is  white  arsenic:  3d,  Part  of  it  swims  on  the  surface  of  cold 
water  like  a  pale  sulphureous  film ;  but  the  greater  part  sinks  to 
bottom,  and  sinks  there  undissolved  ;  the  same  is  true  of  white 
arsenic :  4th,  This  thrown  on  a  red-hot  iron  does  not  flame,  but 
rises  entirely  in  thick  white  fumes,  which  have  the  stench  of 
garlic,  and  cover  cold  iron  held  just  over  them,  with  white 
flowers ;  white  arsenic  does  the  same :  5th,  I  boiled  ten  grains 
of  this  powder  in  four  ounces  of  clear  water,  and  then,  passing 
the  decoction  through  a  filter,  divided  it  into  five  equal  parts, 
which  were  put  into  as  many  glasses.  Into  one  glass  I  poured  a 
few  drops  of  sal  ammoniac,  into  another  some  of  the  lixivium  of 
tartar,  into  the  third,  some  strong  spirits  of  vitriol,  into  the 
fourth,  some  spirits  of  salt,  •  and  into  the  last,  some  syrup  of 
violets.  The  spirits  of  sal  ammoniac,  threw  down  a  few  parti- 
cles of  pale  sediment ;  the  lixivium  of  tartar  gave  a  white  cloud, 
which  hung  a  little  above  the  middle  of  the  glass ;  the  spirits  of 
vitriol  and  salt  made  a  considerable  precipitation  of  a  lightish- 
colored  substance,  which  in  the  former  hardened  into  glittering 
crystals,  sticking  to  the  sides  and  bottom  of  the  glass ;  syrup  of 
violets  produced  a  beautiful  pale  green  tincture.  Having  washed 


496  MEDICAL   EVIDENCE. 

the  sauce-pan,  funnel  and  glasses  used  in  the  foregoing  experi- 
ments very  clean,  and  provided  a  fresh  filter,  I  boiled  ten  grains 
of  white  arsenic,  bought  of  Mr.  Wilcox,  druggist  in  Heading,  in. 
four  ounces  of  clear  water;  and  filtering  and  dividing  into  five 
equal  parts,  proceeded  with  them  just  as  I  had  done  with  the 
former  decoction.  There  was  an  exact  similitude  between  the 
experiments  made  on  the  two  decoctions ;  they  corresponded  so 
nicely  in  each  trial,  that  I  declared  that  I  never  saw  two  things 
in  their  nature  more  alike,  than  the  decoction  made  with  the 
powder  found  in  Mr.  Blandy's  gruel,  and  that  made  with  white 
arsenic.  From  these  experiments  and  others,  which  I  am  ready 
to  produce  if  desired,  I  believe  that  powder  to  be  white  arsenic." 
These  were  crude  experiments,  and  at  this  day  would  prove  no- 
thing. He  did  not,  by  these  experiments,  detect  arsenic,  but 
some  of  the  foreign  substances  with  which  arsenic  is  sometimes 
combined.  The  "spirit  of  sal  ammoniac," — subcarbonate  of 
ammonia, — in  the  experiment  decomposed  the  sulphate  of  lime, 
with  which  white  arsenic  is  often  adulterated,  and  the  subcar- 
bonate  of  potassa,  '*  lixivium  of  tartar,"  for  the  same  reason  would 
precipitate  a  white  substance,  as  stated  in  the  evidence.  The 
"  white  glittering  crystals  "  were  also  lime,  in  all  probability. 

Mr.  Blandy  may  have  been  poisoned,  and  probably  was;  his 
symptoms  indicated  it.  There  was  no  post  mortem  examination, 
and  the  analysis  was  most  unsatisfactory,  or  would  be  so  now. 
The  daughter  expiated  her  crime  on  the  scaffold,  declaring  to  the 
last  that  she  was  innocent. 

REX  v.  ELIZABETH  PENNING,  Tried  in  1815;  Smith's  Med.  Ev.  207. 

Elizabeth  Fenning  was  tried  and  executed  at  the  Old  Bailey, 
in  1815,  for  administering  arsenic,  with  intent  to  kill.  She  was. 
charged  with  mixing  arsenic  with  yeast  dumplings,  and  thus 
poisoning  Mr.  Jones'  family. 

Mr.  John  Marshall,  testified  that  he  was  a  surgeon,  that  he 
baw  the  family  soon  after  they  had  been  taken  sick,  that  all  the 
symptoms  attending  the  family  were  produced  by  arsenic.  "  I 


LEADING    ADJUDICATED    CASES    IN   ARSENICAL   POISONING.        497 

have  no  doubt  of  it  by  the  symptoms ;  the  prisoner  was  also  ill 
by  the  same,  I  have  no  doubt."  He  was  shown  a  dish  the  next 
morning;  he  examined  it,  washed  it  in  a  tea-kettle  of  warm 
water,  stirred  it,  and  let  it  subside,  decanted  it  oflj  found  half  a 
teaspoonful  of  white  powder, — found  it  to  be  arsenic.  Question 
by  counsel.  "Will  arsenic,  cut  with  a  knife,  produce  the  appear- 
ance of  blackness  upon  the  knife?"  " I have  no  doubt  of  it" 
Mr.  Marshall  found  arsenic,  simply  from  examining  the  plate 
alone  on  which  the  dough  had  been  made  up.  No  examination 
of  the  vessel  or  water  in  which  the  dumplings  were  boiled.  No 
inquiry  as  to  where  the  water  or  flour  came  from,  or  the  salt  or 
the  milk.  Mr.  Marshall  had  no  doubt  that  it  was  arsenic  just 
from  looking  at  it.  This  is  all  very  loose.  Throughout  the 
whole  case  there  is  no  evidence  of  any  poison  being  administered. 
In  the  case  of  Eliza  Ward,  tried  in  1816,  a  medical  witness 
testified,  in  answer  to  a  question  from  Mr.  Justice  Bailey  as  to 
how  little  arsenic  would  produce  death,  that  he  thought  one 
hundred  and  twenty  grains  would  be  sufficient,  though  of  that  sold 
in  the  shops,  it  would  require  one  ounce  and  a  half;  that  sixty 
grains  would  produce  violent  retching,  and  the  effect  would  be 
greater  still  on  an  empty,  than  on  a  full  stomach,  and  much 
would  also  depend  upon  the  strength  of  the  person  to  whom  it 
was  administered. 

REX  v.  ROBERT  SWALE  DONNALL,  Tried  1817;  Smith  Med.  Ev.  212. 

Donnall,  a  surgeon  of  Falmouth,  England,  was  tried  for 
poisoning  his  mother-in-law,  Mrs.  Downing,  with  arsenic.  It 
appeared  that  when  Mrs.  Downing  eat  at  the  defendant's  on  the 
2d  of  November,  she  became  sick,  and  continued  ill  four  days. 
Dr.  Edwards  swore  that  he  saw  her  on  the  3d.  Mr.  Donnall 
informed  him  that  Mrs.  Downing  had  an  attack  of  cholera  morbus, 
and  that  she  had  a  similar  attack  a  fortnight  before.  Mrs.  Down- 
ing felt  heat  in  her  stomach  and  also  cramps  in  her  legs ;  her 
pulse  was  a  frequent  fluttering  pulse.  Cholera  morbus  produces 
death  in  two  or  three  days ;  never  met  with  a  case  that  produced 
32 


498  MEDICAL   EVIDENCE. 

death  in  less  than  that  time.  This  patient,  therefore,  could 
not  have  died  of  cholera  morbus.  She  died  the  next  morning. 
Went  Thursday  afternoon  to  examine  the  body  as  to  the  cause 
of  death,  was  requested  by  the  coroner  to  make  the  examination. 
Mr.  Donnall  was  there,  and  Mr.  Street,  a  surgeon.  Mr.  Donnall 
prepared  to  operate, — told  him  he  was  to  have  nothing  to  do 
with  the  operation.  The  stomach  was  opened  and  examined, 
and  the  contents  poured  into  a  basin.  "  We  examined  that 
which  was  put  into  the  basin  with  our  fingers,  in  order  to  ascer- 
tain whether  any  heavy  or  gritty  substance  had  subsided  to  the 
bottom;  found  no  deposit  of  any  heavy  substance."  The 
stomach  was  inflamed,  in  parts  stellated,  coats  of  stomach 
softened,  and  some  parts  nearly  destroyed  by  some  corrosive 
substance ;  the  intestines  were  inflamed.  Such  an  inflammation 
could  net  be  produced  in  that  time  by  any  natural  cause;  any 
active  poison  will  produce  such  an  effect  in  so  short  a  time.  Mr. 
Donnall  had  emptied  the  jug  into  another  vessel  while  we  were 
examining  the  other  parts  of  the  body.  Took  the  contents  and 
examined  it  with  different  chemical  tests,  and  they  all  showed 
the  presence  of  arsenic, — "  detected  arsenic  in  solution,  but  not  in 
substance,"  "  have  no  doubt  that  death  was  produced  by  arsenic." 

The  prisoner  claimed  that  the  death  resulted  from  cholera 
morbus,  that  the  post  mortem  examination  revealed  the  appear- 
ances of  cholera  morbus.  He  introduced  a  number  of  physicians 
who  swore  they  believed  the  deceased  died  of  cholera  morbus. 

The  tests  used  in  this  case  were,  as  usual,  very  unsatisfactory ; 
but,  singularly  enough,  the  prisoner  was  acquitted  in  the  face  of 
an  able  and  one-sided  charge  against  him  from  Mr.  Justice 
Abbott,  afterward  Lord  Chief-Justice. 

REX  v.  ANN  BARBER,  Tried  in  1821;  Smith's  Med.  Ev.  233. 

The  leading  medical  witness  gave  the  following  very  unpro- 
fessional testimony  on  the  occasion.  "  I  am  a  surgeon  and  apothe- 
cary at  0 .  On  Saturday,  March  17th,  I  was  sent  for,  to 


LEADING   ADJUDICATED    CASES    IN   ARSENICAL   POISONING.        499 

'gee  the  body :  I  went  on  Sunday  morning,  when  the  inquest  was 
sitting,  and  opened  the  body :  I  was  able,  very  clearly,  to  ascer- 
tain the  cause  of  death :  I  found  the  stomach  in  a  very  putrid 
state ;  the  coats  were  much  corroded ;  it  was  very  much  inflamed 
indeed ;  the  death  I  attributed  to  mineral  poison.  It  is  within  my 
knowledge  and  experience  that  mineral  poison  would  produce  the 
effect  I  observed.  From  the  coats  of  the  stomach  I  took  mineral 
poison ;  it  was  white  arsenic ;  I  proved  it  by  a  solution  of  ammoni- 
ated  copper ;  the  solution  is  purple ;  on  putting  arsenic  in  it,  it 
becomes  quite  green.  Nitrate  of  silver  does  the  same ;  it  is  a  very 
delicate  test ;  I  tried  it  by  both,  and  found  the  same  result.  I 
know  of  no  other  substance  but  arsenic  that  does  convert  them 
into  green ;  I  am  satisfied  that  it  was  arsenic.  I  opened  the  body 
further ;  the  lungs  were  very  black,  which  I  look  upon  as  a  cri- 
terion of  mineral  poison ;  the  external  appearances  were  the  same 
as  I  saw  in  cases  where  it  was  known  that  arsenic  had  been  taken. 
On  the  body  of  the  deceased  were  various  livid  spots ;  the  skin 
of  the  stomach  was  quite  green,  twice  the  breadth  of  a  man's 
hand.  I  was  satisfied  from  the  appearance  that  he  had  died  of 
mineral  poison." 

Cross-examination. — "  I  never  saw  the  body  till  Sunday  morn- 
ing, between  eleven  and  twelve ;  and  he  died  on  Saturday  morn-* 
ing  at  four,  I  understood.  The  ears  were  black,  the  finger-ends 
were  black ;  convulsions  would  make  the  body  look  black ; 
appearances  in  so  aggravated  a  state  could  not  be  produced  but 
by  mineral  poison.  Matter  issued  from  the  mouth,  which  is, 
another  criterion ;  convulsions  are  produced  by  many  causes 
quite  distinct  from  poison.  I  can  not  tell  how  many  mineral 
poisons  there  are.  /  never  applied  the  test  before,  and  never  saw 
any  other  person  apply  it.  The  presence  of  arsenic  may  be 
detected  by  red-hot  iron;  upon  that  a  smell,  as  of  garlic  or 
onions  arises.  I  did  not  try  that  test;  I  was  sufficiently  con- 
vinced without  that.  This  poison  is  a  subject  I  am  very  little 
acquainted  with.  The  lungs  could  not  be  so  black,  h;id  there 
not  been  arsenic  given.  I  did  not  open  the  head,  there  was  no 


500  MEDICAL   EVIDENCE. 

occasion.  None  of  the  circumstances,  but  all  together,  convinced 
me  that  the  death  proceeded  from  poison;  there  was  not  one 
circumstance  inconsistent  with  that  conclusion." 

Only  thirty-eight  years  ago,  this  kind  of  medical  testimony 
sealed  the  late  of  this  victim  in  England. 

REX  v.  MARY  SMITH,  Sym's  Judiciary  R.  93. 

The  progress  and  certainty  of  science  is  illustrated,  almost  for 
the  first  time,  in  the  case  of  Mary  Smith,  tried  in  Edinburgh,  in 
18^7,  lor  administering  poison  to  her  servant,  Margaret  Warden. 
The  deceased  was  pregnant  by  the  prisoner's  son.  The  supposed 
poison,  it  appears,  was  twice  given  to  her.  From  the  first,  which 
was  taken  at  night,  no  decided  eilect  seems  to  have  accrued. 
She  complained  of  pain,  and  was  sick  and  vomited.  The  second 
dose  produced  thirst,  vomiting  and  purging,  and  violent  pain  in  the 
bowels,  and  these  symptoms  were  lollowed  by  prostration,  stupor, 
cold  extremities  and  a  feeble  pulse.  Death  lollowed  in  thirty-six 
hours.  An  examination  of  the  body  took  place  two  days  after; 
there  was  considerable  putrefaction  externally,  yet  the  stomach 
and  bowels  were  in  a  state  of  "  wonderful  preservation."  The 
inner  coat  of  the  stomach  was  raised  and  separated  in  many 
places  from  the  adjoining  ones,  and  in  other  places  was  corrugated 
and  abraded.  Blood  was  extravasated  under  it.  The  intestines 
bore  marks  of  vascular  excitement. 

The  fluid  found  in  the  stomach  amounted  to  ten  or  twelve 
ounces,  and  yellow  particles  floated  on  it.  Similar  particles  also 
adhered  to  it.  The  physicians  of  Dundee  examined  a  portion  of 
the  contents  by  the  liquid  tests,  and  then  reduced  some  with  the 
black  flux.  With  each,  indications  of  arsenic  were  given.  Dr. 
Chiistison  made  a  similar  investigation,  and  also  obtained  the 
metal.  The  court  supposed  it  had  sufficient  evidence  to  convict 
the  prisoner,  but  the  jury  did  not  so  think. 


LEADING    ADJUDICATED    CASES    IN    ARSENICAL   POISONING.        501 
REX  v.  WISHART,  Sym's  Judiciary  R.,  Appendix  1. 

Wishart  was  tried  in  Scotland,  convicted  and  executed,  on  the 
testimony  of  Dr.  Christison.  He  was  charged  with  poisoning  a 
pregnant  sister,  by  introducing  arsenic  into  the  porridge  eaten  by 
deceased.  It  was  eaten  on  Tuesday  evening,  the  usual  symptoms 
of  arsenical  poisoning  supervened.  On  Friday  the  deceased  was 
delivered  of  a  living  child,  and  on  Saturday  she  died.  Eight 
days  after  the  body  was  disinterred  ;  there  was  a  small  perforation 
in  the  stomach,  and  the  villous  coat  was  very  vascular,  and 
in  some  places  abraded.  The  intestines  were  very  red.  The  con- 
tents of  the  stomach,  and  a  portion  of  the  viscus  were  submitted  to 
the  action  of  tests,  but  in  none  of  these  did  the  silver  and  copper 
tests  give  any  indications  of  arsenic.  After  the  liquor  had  been 
acidulated  with  acetic  acid,  sulphuretted  hydrogen  yielded  a 
yellow  precipitate,  which  was  reduced  by  the  black  flux.  Dr. 
Christison  afterward  converted  the  crust,  by  repeated  sublimation, 
into  little  octahedral  crystals  of  oxide  of  arsenic,  which  he  esti- 
mated to  amount  to  about  the  fortieth  part  of  a  grain.  In  the 
stomach,  there  were  appearances  of  the  sulphuret 

Orfila  furnished  to  the  French  government  the  necessary  evi- 
dence for  the  conviction  of  one  Urbain  X.,  under  the  following 
circumstances : 

In  1832,  three  persons,  named  Teiner,  all  in  good  health, 
experienced  severe  colic  and  nausea,  followed  by  violent  vomiting, 
after  eating  cabbage  soup.  Others  who  had  eaten  of  it  were 
affected  in  the  same  way.  Two  of  the  three  died,  the  other  con- 
tinued infirm  through  the  effect  of  what  they  had  eaten.  The 
disease  was  pronounced  to  be  gastro-enteritis.  Urbain  succeeded 
to  their  property.  It  was  ascertained  soon  after,  that  he  was  in 
possession  of  a  large  quantity  of  arsenic.  It  appeared,  that  a  few 
days  before  the  sickness  he  called  to  dine  with  a  brother  and 
sister-in-law,  and  talking  about  the  quality  of  their  new  corn, 
expressed  a  wish  to  see  it.  The  wife,  who  was  about  to  b;ike, 
had  recently  put  flour  in  the  chest  She  showed  the  flour  to 


502  MEDICAL  EVIDENCE!. 

Urbain,  who  took  up  a  handful  of  it,  and  in  a  few  seconds  threw 
it  back  again  into  the  chest,  saying  it  was  better  than  his.  Soon 
after  she  made  her  bread.  Twelve  persons  ate  of  it,  and  all  were 
attacked  with  violent  colic  and  frequent  vomiting.  When  they 
resumed  the  use  of  the  bread  the  sickness  came  on,  and  at  no 
other  time.  Had  others  of  the  party  died,  Urbain  would  have 
inherited  their  property  also. 

These  circumstances  led  to  a  chemical  examination  of  the 
bread.  Two  chemists  were  commissioned,  but  could  find  no 
poison.  It  was  then  committed  to  Orfila.  He  cut  the  bread 
into  small  pieces,  tested  it  with  distilled  water,  filtered  the  liquid, 
and  tested  it  by  concentrated  liquid  sulphuretted  hydrogen.  The 
fluid  became  instantly  yellow,  but  was  not  sensibly  troubled.  A 
few  drops  of  muriatic  acid  were  now  added,  to  precipitate  any 
sulphuret  of  arsenic  that  might  form.  It  was  not  until  several 
days  had  elapsed,  that  a  yellow  precipitate,  consisting  of  sulphu- 
ret of  arsenic  and  organic  matter,  was  deposited.  This  precipi- 
tate being  washed  with  distilled  water,  was  placed  on  a  little  filter, 
and  washed  with  very  weak  ammonia.  Thus  the  sulphuret  was 
dissolved  and  the  organic  matter  left.  The  ammoniacal  solution 
was  now  evaporated  to  dry  ness,  and  the  residuum  mixed  with  a 
little  charcoal  and  carbonate  of  potash.  The  organic  matter  was 
then  driven  off'  by  the  application  of  gentle  heat.  And  finally 
the  watch-glass  and  its  contents  were  pulverized  in  a  mortar  and 
the  powders  introduced  into  a  tube,  the  upper  end  of  which  was 
drawn  out  in  the  spirit-lamp.  As  soon  as  it  become  of  a  red 
heat,  metallic  arsenic  quickly  appeared. 

In  other  cases  like  this,  Orfila  has  detected  arsenic  when  others 
failed,  by  being  longer,  more  careful  and  more  skillful  in  the 
application  of  his  tests. 

For  correctness  of  observation,  clearness  of  detail,  and  con- 
clusiveness  of  results,  the  experiments  are  justly  celebrated,  hav- 
ing done  much  to  establish  the  certainty  of  arsenical  tests. 

The  most  important  American  adjudicated  cases  are  the  fol- 
Ibwing : 


LEADING   ADJUDICATED    CASES   IN   ARSENICAL   POISONING.         503 
COMMONWEALTH  v.  LUCRETIA  CHAPMAN  AND  LINO  MINA,  2  Beck,  543. 

Lucretia  Chapman  and  Lino  Mina  were  tried  for  the  murder 
of  William  Chapman,  in  Philadelphia,  in  1831. 

Mr.  Chapman,  it  was  supposed,  died  of  cholera  morbus.  But 
the  marriage  of  Mrs.  Chapman  with  Mina  excited  suspicion,  and 
the  body  was  disinterred,  about  two  months  after  interment. 

The  prisoner,  Mina,  was  a  lodger  in  the  house  of  Chapman, 
and  became  enamored  of  Mrs.  Chapman,  and  she  of  him.  There 
was  an  attempt  to  poison  Mr.  Chapman  on  the  17th  of  June, 
but  it  failed.  On  Monday  the  20th,  the  arsenic  was  given  to 
him  in  soup.  The  usual  symptoms  of  burning  heat  in  the 
stomach  supervened,  with  vomiting  and  purging;  no  physician 
however  saw  him  until  the  21st,  when  Dr.  Knight  visited  him. 
He  was  deaf,  his  extremities  were  cold,  and  he  was  at  times  de- 
lirious, no  fever ;  but  pulse  very  feeble.  He  soon  afterward  had 
bloody  stools,  and  died  on  the  23d.  The  physicians  being  friends, 
called,  hearing  of  his  sickness,  without  being  sent  for. 

The  post  mortem  appearances  were  a  livid  and  putrid  face, 
no  offensive  odor  from  the  body.  The  abdomen  was  firm  and 
remarkably  resistant.  A  very  peculiar  smell  arose  from  the 
stomach  when  cut  open,  which  the  witness  compares  to  pickled 
herring.  The  internal  surface  of  the  stomach  was  covered  with 
dark  brownish-colored  mucus,  and  presented  an  inflammatory 
appearance.  The  distinguished  J.  K.  Mitchell,  of  Philadelphia, 
examined  the  contents  of  the  stomach.  The  mucus  was  subjec- 
ted to  one  form  of  analysis,  and  the  solid  parts  to  another. 

Distilled  water  was  added  to  the  mucus,  and  the  whole  boiled 
in  a  Florence  flask  for  some  time ;  the  fluid  was  then  filtered. 
The  matter  and  filter  was  thrown  into  nitric  acid.  The  filtered 
liquor  was  transparent  and  of  a  faint  amber-yellow  color.  The 
liquid  test  was  used.  The  copper  test  gave  an  undecided  grass 
green, — nitrate  of  silver,  a  brownish-yellow  flocculant  precipitate, 
which  grew  darker  and  soon  lost  its  yellowness, — sulphuretted 
hydrogen  gas  deepened  the  yellow  tint  of  the  solution  a  very 


504  MEDICAL    EVIDENCE. 

little.  The  whole  of  the  liquid  was  then  subjected  to  the  last 
test,  heated  until  it  became  distinctly  yellow,  and  its  transparency 
was  gone.  The  whole  was  then  left  on  a  filter  for  several  hours. 
When  again  examined,  there  was  a  transparent  liquid  below  the 
filter,  and  on  it  a  yellow  substance,  which  could  not  be  separated 
from  it  being  in  too  small  a  quantity,  and  the  whole,  filter  and  all, 
was  thrown  into  the  vessel  containing  the  firmer  portions  of  the 
body,  which  were  being  dissolved.  This  solution  being  evaporated 
to  dryness,  was  again  heated  with  nitric  acid,  and  evaporated 
until  the  animal  matter  was  destroyed. 

Water  was  added  to  the  residue,  and  heat  to  boiling  again 
applied.  To  the  product  obtained  by  filtration  and  evaporation, 
lime-water  was  added,  and  this  again  evaporated.  A  portion  of 
this  was  mixed  with  charcoal,  placed  in  a  glass  tube  and  subjected 
to  the  heat  of  a  spirit-lamp.  The  tube  became  covered  at  some 
distance  from  the  material  with  a  black  and  glistening  substance, 
but  at  this  point  of  the  experiment  the  tube  broke  from  the 
action  of  the  heat.  Mr.  Clemson,  a  highly  educated  chemist, 
instantly  detected  the  odor  of  arsenic.  The  other  portions  were 
heated  in  like  manner,  but  nothing  beyond  the  black  dark-brown 
matter  could  be  obtained.  There  was  no  arsenic  detected  by  the 
eye.  There  was  a  difference  of  opinion  as  to  the  cause  of  death 
among  the  medical  witnesses.  The  analysis  was  not  satisfactory. 
Mina  was  convicted, — Mrs.  Chapman,  however,  escaped. 

THE  STATE  v.  SAGER,  2  Beck,  546. 

Sager  was  tried  in  Maine,  in  October,  1834,  for  poisoning  his 
wife.  In  this  case  there  was  great  distress  experienced  immedi- 
ately after  taking  the  poison.  It  had  been  added  to  wine,  in 
which  an  egg  had  been  stirred.  Nausea,  retching  and  vomiting 
succeeded,  with  violent  spasms,  great  distress,  at  the  stomach, 
feeble  pulse,  and  cold  sweats.  The  vomiting  was  stained  with 
blood  toward  the  last.  On  dissection,  livid  patches  were  found 
in  the  stomach,  as  if  blood  was  collected  betwen  the  coats ;  the 


LEADING    ADJUDICATED    CASES    IN    ARSENICAL   POISONING.        505 

remainder  of  that  viscus  and  the  intestines  were  of  a  high  florid 
color.  The  silver  and  copper  tests  would  not  act  on  the  contents 
of  the  stomach,  or  the  matter  vomited,  but  the  sulphuretted 
hydrogen  produced  its  usual  result,  applied  by  Prof.  Cleveland, 
the  principal  medical  witness.  The  prisoner  was  convicted. 

THE  COMMONWEALTH  v.  JOHN  EARLS,  2  Beck,  546. 

In  1836,  John  Earls  was  tried  and  convicted  for  the  murder 
of  his  wife,  in  Lycoming  County,  Pennsylvania.  The  case  was 
tried  by  the  Hon.  Eilis  Lewis.  This  case  also  illustrated,  in  a 
high  degree,  the  advanced  state  of  Medical  Evidence  on  this  sub- 
ject of  poisoning  with  arsenic.  The  deceased  was  confined  on 
Wednesday ;  she  was  doing  well,  and  rapidly  improving  on 
Thursday,  when  she  was  seized  with  violent  vomiting  in  the 
evening,  after  drinking  some  chocolate.  Some  mint  tea,  also 
drugged  with  arsenic  was  now  administered.  The  vomiting  con- 
tinued, with  violent  pain,  particularly  in  the  stomach,  intense 
thirst,  until  she  finally  sunk  and  died.  On  dissection,  the  coats 
of  the  stomach  were  found  highly  inflamed,  and  easily  separable ; 
the  intestines  were  also  inflamed ;  the  brain  turgid,  and  the  right 
and  left  auricles  and  ventricles  of  the  heart  each  filled  with  blood. 
The  contents  of  the  stomach  were  examined  with  the  usual  tests, 
and  gave  complete  indications  of  arsenic.  The  process  of  reduc- 
tion was  also  performed.  Drs.  Dougal,  Kittoe  and  Ludwig 
were  the  medical  witnesses,  and  acquitted  themselves  with  great 
credit  to  themselves  and  honor  to  the  profession  they  so  ably 
represented.  The  prisoner  ultimately  confessed  the  crime. 

THE  PEOPLE  v.  JAMES  E.  ELDRIDGE,  New  York. 

James  E.  Eldridge  was  tried,  December,  1857,  for  the  murder 
of  Sarah  Jane  Gould,  St.  Lawrence  Oyer  and  Terminer,  New 
York.  The  case  is  still  pending  on  a  writ  of  error.  The  defend- 
ant was  convicted  and  sentenced  by  Judge  James. 

Dr.  Ira  Gibson  testified  on  the  trial,  that  he  visited  the  deceased 


606  MEDICAL   EVIDENCE. 

on  the  20th  of  May,  found  her  vomiting,  distress  in  the  stomach, 
with  thirst ;  vomited  every  ten  or  fifteen  minutes ;  complained  of  a 
burning  sensation  in  the  stomach.  Next  day  "  her  stomach  felt 
as  if  it  was  burning  up,"  thirst  excessive ;  vomited  once  an  hour. 
On  Thursday  morning  was  a  little  better,  not  quite  so  much 
burning  in  the  stomach,  worse  in  the  evening ;  severe  palpitation 
of  the  heart,  hurried  breathing;  and  on  Friday  her  symptoms 
were  worse,  vomitings  more  frequent,  more  pain,  breathing  diffi- 
cult. Saturday  morning,  nervous  system  much  excited,  extremi- 
ties cold.  She  died  Saturday  afternoon.  Made  a  post  mortem 
examination  with  Dr.  Paddock,  soon  after  death.  There  was  but 
little  ulceration.  The  stomach  and  uterus  were  taken  out.  No 
indications  of  disease,  except  a  little  congestion  of  the  lungs. 
No  natural  disease  that  would  account  for  her  death.  The  de- 
ceased was  pregnant,  advanced  six  or  eight  weeks.  Never  had 
any  acquaintance  with  the  effect  of  arsenic  upon  the  system 
before  this  case. 

It  was  supposed  the  prisoner  also  took  arsenic,  soon  after 
suspicion  rested  on  him.  Dr.  Gibson  testified,  that  on  the 
morning  of  the  7th,  the  day  after  the  post  mortem  examination, 
he  called  to  see  the  prisoner.  The  prisoner  said  he  was  t.iken  in 
the  night  with  sickness  at  the  stomach.  Took  up  a  tumbler 
sitting  by  him  in  which  there  was  some  white  powder  adhering 
to  the  inner  surface  of  it;  the  prisoner  said  he  did  not  know 
what  it  was,  that  there  must  have  been  something  in  it  when  it 
was  given  to  him.  Scraped  off  some  of  the  powder,  threw  it 
upon  some  coals ;  it  went  up  in  a  white  smoke,  and  gave  off  the 
odor  of  garlic.  The  prisoner  denied  having  taken  arsenic.  He 
complained  of  a  burning  sensation  in  his  stomach,  was  very 
thirsty,  and  vomited  frequently.  He  continued  very  sick  for 
more  than  a  week.  His  symptoms  were  very  much  like  those 
attending  the  deceased. 

Drs.  Joseph  Ripley  and  W.  A.  Paddock  were  present  at  the 
post  mortem,  and  corroborated  Dr.  Gibson. 

Dr.  S.  N.  Sherman  testified,  that  he  had  bestowed  some  little 


LEADING    ADJUDICATED    CASES    IN    AESENICAL   POISONING.        507 

attention  to  analytical  chemistry  and  the  detection  of  poisons  in 
the  human  system.  Examined  the  body  of  the  deceased  at  the 
request  of  the  District  Attorney  and  the  court.  Went  to  Louis- 
ville for  that  purpose  and  had  the  body  disinterred.  No  bad 
odor.  No  incipient  signs  of  decomposition  of  the  skin.  Neither 
the  large  or  small  intestines  were  distended,  but  appeared  on 
their  upper  surface  like  parchment,  or  as  if  they  had  been  exposed 
to  the  direct  rays  of  the  sun.  No  appearance  of  inflammation 
of  the  bowels,  except  slight  traces  in  the  duodenum.  No  peri- 
toneal inflammation ;  found  the  stomach  and  uterus  had  been 
removed  at  a  previous  post  mortem  examination.  Removed  the 
intestinal  canal,  the  liver,  heart,  spleen  kidneys,  lungs  and  bladder^ 
He  was  furnished  with  a  jar  said  to  contain  the  stomach  and  uterus 
of  the  deceased,  all  of  which  he  took  away.  He  also  took  above 
two  ounces  of  what  purported  to  be  Dr.  Rogers'  Syrup  of  Tar, 
of  which  the  deceased  had  been  taking.  He  purchased  another 
bottle  of  the  same  with  the  seal  unbroken.  For  ten  or  twelve  days, 
Dr.  Sherman,  assisted  by  Dr.  Page,  was  engaged  in  the  analysis 
of  these  several  parts.  Having  nothing  but  the  solid  parts  of  the 
body,  these  were  reduced  to  a  soluble  condition  by  boiling  them  in 
distilled  water  and  hydrocloric  acid  in  a  glass  vessel.  Reinsch's 
test  was  applied,  when  he  obtained  the  presence  of  arsenic  in  the 
shape  of  crystals  of  the  oxide  of  that  metal.  To  a  little  distilled 
water,  he  added  one-hundredth  of  a  grain  of  arsenic  in  solution^ 
and  applied  to  it  the  same  test,  but  got  only  faint  indications  of 
its  presence.  Then  took  three-hundredths  of  a  grain  of  arsenic 
in  solution,  and  submitted  it  to  the  same  test,  and  got  more 
marked  results.  Took  six-hundredths,  of  a  grain  of  arsenic  and 
submitted  it  to  Reinsch's  test,  and  got  still  more  marked  evi- 
dence of  arsenic,  but  not  so  evident  as.  the  first  from  part  of  the 
liver.  Found  arsenic  by  the  same  test  in  the  liver,  spleen,  kid- 
neys, intestines,  heart  and  stomach.  From  the  copper  test  got  a 
rich  green  precipitate,  so  characteristic  of  the  presence  of  arsenite 
of  copper.  The  Liverwort  and  Tar,  of  which  the  deceased  par- 


508  MEDICAL   EVIDENCE. 

took,  also  contained  arsenic.  The  other  bottle,  that  had  not  been 
•opened,  gave  no  evidence  of  arsenic. 

The  hydrogen  test  was  also  carefully  applied  with  the  same 
results,  revealing  the  presence  of  arsenic. 

These  experiments  enabled  the  witness  to  say :  "  I  unhesitat- 
ingly embrace  the  conviction,  amounting  to  certainty,  that  arsenic 
in  appreciable  amounts  existed  in  the  body  of  Sarah  Jane  Gould, 
.at  her  death,  and  was  I  he  cause  of  her  death" 

This  witness  then  stated  :  "  I  have  heard  all  the  testimony  of 
the  witnesses,  and  Dr.  Gibson,  in  regard  to  her  symptoms,  and 
it  is  my  opinion  that  they  were  caused  by  the  administration  of 
arsenic."  This  evidence  was  certainly  objectionable.  1.  Because 
the  witness  might  not  have  heard  all  that  was  said ;  his  attention 
might  not  have  been  given  to  the  material  points  in  the  case,  though 
present  all  the  time.  2.  It  is  impossible  to  tell  what  elements 
entered  into  his  conclusion.  He  may  have  considered  some 
things  that  were  not  evidence.  3.  He  passed  upon  facts  the 
jury  alone  were  sworn  to  decide,  under  the  charge  of  the  court.1 

A  hypothetical  case  should  have  been  given  to  the  witness, 
and  the  jury  left  to  determine  whether  the  case  had  been  made. 

The  prisoner  was  declared  by  the  jury  to  be  guilty,  and  sen- 
tenced by  the  court  to  be  hung. 

The  case  was  carried  to  the  Supreme  Court  on.  a  writ  of  error, 
which  was  overruled,  when  an  appeal  was  taken  to  the  Court  of 
Appeals,  where  the  writ  of  error  was  sustained  and  a  new  trial 
ordered. 

THE  PEOPLE  v.  JAMES  STEPHENS,  Common  Pleas,  New  York,  1859. 

In  September,  1857,  the  wife  of  Stephens  died,  and  was  buried 
in  Greenwood.  The  family  was  in  humble  circumstances,  of  moral 
.standing,  and  at  the  time  of  the  death  no  one  out  of  the  family 


1  Jamesons  v.  Drinkald,  32  E.  C.  L.  R.  636 ;  12  Moo.  148 ;  Ramage  v.  Ryan, 
-33  E.  C.  L.  R.  604 ;  9  Bing.  333. 


LEADING    ADJUDICATED    CASES    IN   ARSENICAL    POISONING.        509 

thought  of  any  criminal  agency  connected  with  it.  The  deceased 
lay  in  her  grave  a  twelvemonth,  when  circumstances  drew  atten- 
tion to  the  causes  of  her  death. 

It  seemed  that  the  prisoner  had  a  motive  in  relieving  himself 
of  his  wife,  which  was,  she  was  several  years  older  than  him- 
self, and  his  treatment  of  her  was  unkind  and  cruel.  He  wished 
to  marry  a  younger  lady.  It  was  ascertained  that  the  prisoner 
purchased  arsenic  before  the  illness  of  his  wife,  and  there  was  evi- 
dence that  he  administered  it  to  her.  The  symptoms  attending 
the  sickness  were  those  of  arsenical  poisoning.  When  a  physician 
was  called  and  had  complete  charge  of  the  patient,  she  grew 
better,  when  Stephens  was  with  her  and  gave  the  medicine  she 
grew  worse.  The  prisoner  remained  with  her  all  day  on  the  22d 
of  September,  giving  her  medicine,  until  at  three  o'clock  next 
morning,  when  she  died. 

This  case,  more  forcibly  perhaps  than  any  other  ever  tried  irr 
this  country,  illustrates  the  advancement  of  science  of  late  years, 
by  which  the  mute  body  of  a  deceased  person  can  be  brought 
forth  after  resting  a  long  time  in  the  grave,  and  with  powerful 
eloquence  tell  the  story  of  its  own  death.  It  is  also  distinguished 
for  the  great  ability  of  the  Medical  Evidence,  especially  that  of 
Prof.  Doremus,  of  whom  Mr.  Ashmead,  although  for  the  defense, 
said :  "  I  would  also  state  that  I  have  seldom  seen  so  able  a  man 
as  Dr.  Doremus,  who  so  thoroughly  understood  his  profession, 
and  I  feel  proud  that  we  have  such  a  man  among  us;  and  I 
believe,  from  the  ability  he  has  displayed,  that  his  name  must  at 
all  times  be  recalled  at  the  side  of  Orfi!a  and  the  other  great 
chemists  of  the  world."  The  counsel,  for  both  the  prosecution 
and  the  defense  were  able,  and  there  was  never  a  more  complete 
vindication  of  the  profession  of  medicine  than  in  this  case. 

We  shall  only  give  the  Medico-legal  aspects  of  the  case. 

It  was  in  evidence  that  Stephens  gave  to  his  wife  apples  and 
oranges,  after  eating  which,  she  always  vomited.  The  counsel  for 
the  State  asked  the  witness  "  What  more  did  Mr.  Stephens  do  ta 
the  orange  beside  cutting  it  up?"  Objected  to  as  leading;  but 


610  MEDICAL   EVIDENCE. 

the  court  allowed  it  to  be  asked  in  this  form  :  "  What  was  done 
to  that  orange  ?"  The  answer  was  :  "  lie  first  peeled  it,  then  cut 
it  up,  then  put  sugar  on  it,  and  gave  it  to  my  aunt ;  my  aunt 
complained  of  burning  in  the  stomach,  and  vomiting;  said  she 
felt  as  if  there  was  a  ball  of  fire  in  her  stomach,  and  if  she  could 
only  get  that  out  she  would  feel  better;  once  at  dinner  Mr. 
Stephens  put  some  rice  on  a  plate  and  took  it  to  my  aunt,  who 
was  in  bed ;  he  put  white  sugar  on  the  rice ;  the  sugar  was  stand- 
ing on  the  table ;  she  commenced  eating  it,  and  Mr.  Stephens 
went  out;  witness  soon  after  went  into  the  room  and  ate  some 
of  the  rice." 

Counsel  for  defense  objected  to  evidence  as  to  the  effect  of  that 
rice  upon  the  witness,  but  the  objection  was  overruled. 

"  In  a  few  minutes  after  eating  the  rice  witness's  head  grew 
dizzy,  and  she  went  to  her  room  and  commenced  vomiting; 
when  she  left  the  room  her  aunt  was  vomiting ;  witness  continued 
to  vomit  freely  until  half-past  five  or  six  o'clock ;  her  aunt  came 
into  witness's  room,  and  said  that  Bella,  (the  little  girl,)  had 
eaten  of  the  rice  and  was  vomiting,  and  she  would  send  for  Mr. 
Stephens." 

This  evidence  was  again  strenuously  objected  to  by  defense. 

As  to  the  symptoms  attending  the  case,  this  witness  said : 
"  Stephens  gave  her  aunt  tea,  lager  beer,  brandy,  porter,  ale,  milk, 
water,  coffee  and  lemonade ;  deceased  first  complained  of  red 
spots  before  her  eyes,  and  dizziness  in  her  head,  and  then  she 
complained  of  a  heat  in  her  chest ;  she  thought  it  was  her  lungs ; 
this  was  a  few  days  after  she  was  taken  sick ;  deceased  did  not 
complain  of  pain ;  she  said  there  was  a  burning  pain  or  ball  of 
fire,  in  her  chest ;  it  grew  worse  each  day ;  this  was  after  Dr. 
Cadmus  called,  about  two  or  three  days ;  deceased  did  not  vomit 
much  at  first ;  the  color  of  the  matter  vomited  was  at  first  yel- 
low ;  witness  desired  to  correct  her  statement  in  regard  to  the 
word  '  pain ;'  that  her  aunt  always  said  she  had  a  burning  in  the 
chest  like  a  ball  of  fire ;  the  vomited  matter  continued  yellowish 
for  some  days,  and  when  it  changed,  it  became  a  dark  color,  and 


LEADING    ADJUDICATED    CASES   IN    ARSENICAL    POISONING.       .511 

seemed  darker  each  time  till  she  died ;  deceased  had  a  running 
at  her  mouth,  and  remarked  that  she  could  not  get  her  mouth 
clean ;  she  wiped  it  with  her  handkerchief;  deceased  was  always 
thirsty ;  two  or  three  days  prior  to  her  de:ith,  a  great  change 
came  over  her  countenance;  she  seemed  very  languid  and 
anxious,  and  her  eyes  sank  considerably,  and  she  did  not  answer 
questions  readily ;  the  second  day  after  Dr.  Cadmus  called,  she 
laid  in  bed  a  part  of  the  day;  her  limbs  became  weak,  and  her 
hands  numb ;  her  legs  and  feet  were  swollen ;  they  began  to  swell 
a  day  or  two  before  she  died ;  she  said  her  feet  were  cold,  and 
she  asked  witness  to  put  something  to  warm  them;  she  was  con- 
stantly throwing  her  arms  about  the  bed,  catching  hold  of  some- 
thing ;  her  lips  were  swollen ;  her  face  was  redder  than  usual ; 
otherwise  did  not  notice  the  color  of  her  skin ;  the  discharges 
from  the  bowels,  when  diarrhea  sat  in,  were  dark,  and  very  offen- 
sive; they  continued  until  she  died;  there  was  also  a  suppression 
of  urine ;  witness  learned  of  this  about  a  week  before  she  died ;  it 
continued  until  she  died ;  deceased  complained  of  pain  in  connec- 
tion with  this ;  the  discharges  from  the  bowels  were  also  attended 
with  severe  pain." 

MEDICAL  TESTIMONY. — Dr.  James  R.  Wood  was  examined  by 
Mr.  Sedgwick,  the  assistant  District  Attorney,  who  conducted  the 
case  for  the  prosecution,  as  respected  the  medical  testimony.  The 
witness  testified  that  he  was  a  physician  and  surgeon,  residing  at 
No.  2  Irving-place  ;  made  a  post  mortem  examination  on  the  24th 
September,  1858,  in  presence  of  Dr.  Doremus,  and  his  assistant, 
the  coroner,  the  director  of  the  hospital  museum,  Dr.  Wood- 
ward, and  several  others ;  made  the  post  mortem  examination  of 
a  female  which  he  caused  to  be  taken  from  a  coffin,  on  the  plate 
of  which  was  the  inscription:  "Sophia  Stephens.  Died  23d 
Sept.,  1857.  Aged  46  years."  "The  Misses  Bell  were  not  in 
the  room ;  caused  the  body  to  be  removed  by  his  assistant  in  the 
hospital,  and  by  his  effort  and  that  of  the  witness,  it  was  removed 
without  dismemberment;  found  the  skin  on  the  anterior  portion 
of  the  body  of  a  yellow  dirty  color,  in  a  remarkable  state  of 


512  MEDICAL   EVIDENCE. 

preservation,  very  little  differing  from  a  body  which  had  recently 
died;  it  had  not  shrunk,  and  was  plump  and  full;  the  face  and 
side  of  the  head  and  the  anterior  portion  of  the  scalp  were  in  an 
advanced  state  of  decomposition,  which  was  accounted  for  by  the 
escape  of  gas  in  the  stomach;  examined  the  posterior  portion  of 
the  body,  which  was  in  the  same  good  state  of  preservation,  ex- 
cept the  skull,  which  was  decomposed ;  opened  the  body  from  the 
sternum  to  the  pubis,  when  gas  escaped ;  this  brought  into  view 
the  anterior  portion  of  the  liver,  the  stomach,  a  portion  of  the 
colon  and  the  omentum ;  the  liver,  stomach  and  colon  were  in  a 
remarkable  state  of  preservation;  the  omentum  was  well  pre- 
served and  loaded  with  fat;  they  were  as  healthy  and  as  well 
preserved  as  the  specimens  in  the  museum ;  the  other  viscera  of 
the  abdomen  were  also  apparently  healthy  and  well  preserved ; 
then  proceeded  to  remove  the  viscera  of  the  abdomen,  first  by 
applying  a  ligature  round  the  caudial  orifice  of  the  stomach  to- 
the  left,  which  removed  the  food  from  the  sesophagus,  and  also 
the  orifice  to  the  right  where  the  food  passes,  this  was  handed  to- 
Dr.  Doremus,  and  placed  in  a  vessel  prepared  for  that  purpose ; 
then  removed  a  portion  of  the  liver,  gall,  and  bladder  and  intes- 
tines, which  were  also  placed  in  a  prepared  vessel ;  the  intestines 
were  examined,  and  the  internal  lining  found  in  a  remarkable 
state  of  preservation,  and  but  little  in  their  cavity ;  the  lower 
part  of  the  large  intestines,  the  rectum  and  colon  had  their  inter- 
nal surface  reddened ;  beyond  this  there  was  nothing  remarkable ; 
this  indicated  congestion  or  probaby  inflammation  of  the  parts; 
the  other  viscera,  a  portion  of  the  small  intestines,  kidneys  and 
uterus,  were  given  to  Dr.  Doremus ;  the  cavity  of  the  belly  con- 
tained nothing  but  two  or  three  ounces  of  oily  material,  which  had 
percolated  through  the  tissues,  which  were  all  loaded  with  fat; 
the  examination  was  made  without  cutting  into  the  cavity  of 
the  thorax ;  this  was  next  examined,  and  the  viscera  were  won- 
derfully well  preserved ;  the  lungs  and  heart  were  in  a  remark- 
able state  of  preservation;  the  other  tissues,  (the  pleura  and  so 
on,)  were  very  dry,  and  no  moisture  on  them ;  then  proceeded  to 


LEADING    ADJUDICATED    CASES    IN    ARSENICAL   POISONING.        513 

examine  the  head  and  face  by  request  of  parties  present,  who 
had  said  there  was  a  scar  or  bruise  at  the  time  of  death,  but  the 
face  was  so  far  decomposed  that  nothing  was  discovered ;  the 
brain  was  next  examined,  but  was  very  much  decomposed,  and 
a  portion  was  given  to  Dr.  Doremus ;  on  another  occasion  the 
muscular  tissues  were  examined,  and  they  had  not  lost  their 
coloring  matter,  but  were  still  red,  and  were  as  well  preserved  as 
many  bodies  that  were  seen  now-a-days  in  the  dissecting-rooms 
of  country  colleges.  The  shroud  and  the  napkin  which  were 
placed  about  the  natus  and  vulva  were  preserved  by  Dr.  Dore- 
mus, as  was  also  some  cotton  found  in  the  mouth ;  examined 
the  mucous  membrane  of  the  stomach  at  Dr.  Doremus's  house ; 
it  was  shrunken  and  harder  than  natural ;  there  were  large 
veins  crossing  over  the  stomach ;  there  was  no  redness  except 
what  was  noticed ;  the  veins  looked  as  if  they  were  over  dis- 
tended or  enlarged;  the  contents  of  the  stomach  were  unusu- 
ally small,  only  about  a  tablespoonful  of  brownish  matter;  there 
was  a  peculiar  odor  from  the  body,  but  it  was  not  that  of  a 
decomposed  body;  the  odor  was  unlike  what  witness  smelled 
before,  because  bodies  preserved  for  dissection  were  preserved 
in  alcohol." 

Dr.  Robert  Ogden  Doremus  testified  that  he  was  a  professor 
of  chemistry,  and  was  present  at  Bellevue  Hospital  when  Dr. 
Wood  made  a  post  mortem  examination,  on  Friday,  24th  Septem- 
ber, 1858 ;  one  of  his  assistants,  Dr.  Zincker,  was  also  present; 
"Dr.  Wood  made  a  post  mortem  examination  of  a  female  after  she 
had  been  recognized  by  two  ladies,  (the  Misses  Bell,)  in  the  pre- 
sence of  the  coroner ;  the  body  was  removed  from  a  coffin  on 
which  was  the  inscription  testified  to  by  Dr.  Wood ;  received  from 
Dr.  Wood  the  stomach,  which  had  been  previously  tied  at  the 
cardiac  and  pyloric  orifices,  a  part  of  the  liver,  the  gall  bladder, 
the  kidneys,  the  pancreas,  uterus,  bladder,  small  and  large  intes- 
tines, with  a  portion  of  the  lungs,  the  heart,  a  part  of  the  brain, 
some  oily  material,  together  with  the  napkins;  these  portions 
were  placed  in  new  and  clean  glass  jars,  and  conveyed  to  his 
33 


514  MEDICAL   EVIDENCE. 

private  laboratory,  where  they  were  chemically  analyzed ;  arsenic 
was  found;  several  portions  of  the  liver,  varying  from  two  to 
eight  ounces,  were  cut  in  very  fine  pieces,  and  then  heated  by 
various  chemical  substances,  such  as  pare  hydrochloric  and  sul- 
phuric acids,  hydrochloric  with  chloride  of  potash,  chlorine  and 
various  gases. 

Witness  explained  the  extent  of  the  operation  of  the  appara- 
tus. He  illustrated  by  the  charts  and  diagrams ;  these  were  pre- 
pared for  Marshall's  apparatus,  consisting  of  a  bottle,  in  which 
zinc,  water  and  hydrochloric  acid  were  used ;  this  was  in  order 
to  set  free  gas,  which  was  ignited ;  after  testing  these  gases,  the 
suspected  liquid  was  introduced,  and  Marshall's  apparatus  em- 
ployed in  the  following  way :  If  arsenic  be  introduced  in  a  cer- 
tain form,  it  formed  a  gas  known  as  arseniated  hydrogen ;  this 
was  inflammable ;  the  mode  of  ascertaining  if  arsenic  was  associ- 
ated with  hydrogen,  was  by  placing  a  cold  piece  of  glass  over 
the  flame,  when,  if  arsenic  te  present,  a  white  crystalline  powder 
was  obtained. 

The  results  of  these  experiments  were  stains  on  the  glass  tube, 
some  of  a  yellowish  hue,  and  others  of  a  dark  appearance ;  wit- 
ness never  having  met  these  stains  before,  but  suspecting  that 
yellow  sulphuret  of  arsenic  was  present,  the  experiment  was 
tried  at  the  New  York  Medical  College,  and  the  sulphur  was 
divided  from  the  arsenic,  but  as  the  traces  were  so  faint,  the 
chemists  arranged  a  three  necked  bottle,  in  which  pure  oxygen 
was  placed,  and  dried  by  passing  through  a  tube  containing 
chloride  of  calcium,  when  the  oxygen  made  its  appearance  at 
the  extremity ;  the  sulphur  obtained  was  found  to  exhibit  one  of 
the  properties  of  sulphuret  of  arsenic ;  the  arsenic,  or  arsenious 
acid,  (which  was  white,)  was  dissolved  in  water,  tested  with  a 
solution  of  ammonia-nitrate  of  silver,  and  produced  a  yellow 
precipitate,  the  arsenite  of  silver,  which  dissolved  in  ammonia ; 
another  portion  of  the  dissolved  white  precipitate  was  tested  with 
the  ammonia-sulphate  of  copper,  yielding  a  precipitate  of  arsenic 
known  as  Shield's  green,  which  dissolved  in  ammonia ;  another 


LEADING    ADJUDICATED    CASES    IN   ARSENICAL   POISONING.        515 

portion  was  tested  with  sulphuretted  hydrogen,  yielding  a  yellow 
precipitate,  which  also  dissolved  in  ammonia.  The  proofs  of 
arsenic  were  as  follows : 

1.  Yellow  in  color. 

2.  It  volatilized  when  heat  was  applied. 

3.  It  oxydized  into  sulphuret  of  arsenic  and  arsenic  acid. 

4.  It  dissolved  in  water. 

5.  It  yielded  a  precipitate  which  dissolved  in  ammonia. 

6.  It  gave  the  characteristic  to  green  precipitate,  which 

7.  Dissolved  in  ammonia. 

8.  It  yielded  a  yellow  precipitate,  which 

9.  Dissolved  in  excessive  ammonia. 

There  was  no  substance  but  arsenic  known  to  chemists  by 
which  such  results  could  be  produced ;  these  results  were  from 
the  liver  and  kidneys ;  the  stomach  and  intestines  were  examined 
in  the  presence  of  Dr.  Wood,  Drs.  Budd,  Zincker  and  witness; 
the  stomach  contained  a  tablespoonful  of  a  brownish  mass,  re- 
sembling coffee  grounds,  which  were  retained  for  examination ; 
the  contents  of  the  stomach  were  tested  by  hot  distilled  water 
and  hydrochloric  acid,  and  Marshall's  apparatus,  and  yielded  no 
stain,  bevond  what  was  found  on  the  heated  coil ;  this  was  an 

•/ 

indication  that  no  arsenic  existed  in  these  contents ;  it  was  also 
tested  ibr  opium,  without  hope  of  success,  because  the  profession 
have  yet  to  learn  that  opium  can  be  found  after  so  long  a  period ; 
the  liquid  produced  from  the  contents  of  the  intestines  was  intro- 
duced, and  yellow  stains  found,  which  led  to  the  suspicion  of 
the  presence  of  sulphuret  of  arsenic,  they  have  since  been  oxy- 
dized, and  correspond  to  the  liquid  chemical  test  of  arsenic ;  the 
white  crystalline  precipitate  found  was  also  examined  by  the 
microscope,  and  showed  the  presence  of  arsenious  acid;  the 
•quantity  taken  from  the  intestines  was  scarcely  half  a  teaspoonful. 
Witness  described  the  process  by  which  he  tested  the  viscera; 
he  next  presented  the  various  tubes  and  glasses  on  which  the 
black  metallic  and  yellow  stains  appeared,  and  explained  the 
tests  which  were  used  to  distinguish  the  black  metallic  arsenic 


516  MEDICAL   EVIDENCE. 

from  antimony,  which  simulated  the  appearance  of  the  former. 
He  next  alluded  to  a  statement  in  the  coroner's  report,  to  the 
effect  that  he  had  not  observed  such  yellowish  stains  before,  nor 
heard  of  them ;  but  he  had  since  seen  a  foot-note  in  a  chemical 
work,  which  showed  that  in  such  stains  there  would  be  found 
black  arsenic,  arsenious  acid,  and  lastly,  sulphuret  of  arsenic, 
combined. 

He  then  described  the  process  pursued  with  ten  ounces  of 
the  muscular  and  adipose  tissues,  until  a  powder  was  obtained, 
which  was  tested  by  aqua  regia,  and  by  means  of  Marshall's 
apparatus  a  metallic  stain  was  found.  Some  four  pounds 
and  four  ounces  of  the  same  were  treated  with  strong  hydro- 
chloric acid,  etc.,  and  other  stains  were  found,  from  which 
sulphuret  of  arsenic  was  procured ;  this  was  oxydized  with 
nitric  acid,  neutralized  by  soda,  and  then  treated  with  nitrate 
of  soda,  and  after  other  tests  a  dark  stain  appeared  beyond  the 
heated  coil ;  oxygen  being  passed  through,  seven-eighths  of  the 
stain  was  oxydized,  and  white  arsenious  acid  was  found,  which, 
being  also  tested  by  nitrate  of  silver  and  sulphate  of  copper, 
produced  the  stains  which  attended  upon  such  tests;  one-eighth 
of  the  stain  was  kept  for  any  further  tests  if  found  necessary. 
Wherever  the  metallic  arsenic  was  heated  and  oxydized,  the  char- 
acteristic garlic  odor  thereof  was  recognized,  not  only  by  him- 
self and  assistants,  but  by  persons  present  who  did  not  expect 
such  odor.  When  examining  the  pieces  of  kidney  and  liver  also, 
the  black  stains  were  obtained  upon  pieces  of  porcelain;  this 
had  been  considered  a  true  indication  of  the  presence  of  arsenic, 
but  as  other  substances,  (antimony  for  instance,)  would  give  out 
a  similar  stain,  the  one  in  question  was  tested  by  hydochloride 
of  soda,  and  dissolved,  which  antimony  will  not  do  by  the  same. 
Some  of  the  bones  were  also  heated  with  hydrochloric  acid  until 
they  dissolved,  the  lime  was  removed,  and  sulphuretted  arsenic 
found  by  the  test  of  sulphuric  acid,  which  subsequently  became, 
on  being  tested,  arsenious  acid,  or  arsenic ;  the  octahedral  crys- 
tals were  seen  and  could  still  be  seen  under  the  microscope.  Subse- 


LEADING    ADJUDICATED    CASES   IN   ARSENICAL   POISONING.         517 

quent  to  the  coroner's  report,  about  two  pounds  and  two  ounces 
of  the  muscular  tissue  were  tested  chemically  in  a  special  labor- 
atory, whose  doors,  windows,  etc.,  were  locked  and  sealed  when 
leaving,  and  the  seals  examined  on  returning,  so  that  no  person 
could  enter,  and  no  one  was  allowed  to  enter  the  room  but  Dr. 
B.  L.  Budd  and  witness.  This  process  was  described  at  great 
length,  the  result  being  the  discovery  of  the  presence  of  arsenic. 
The  skin  and  a  portion  of  the  adipose  tissue  were  treated  in  the 
same  room,  where  the  usual  safeguards  were  used ;  this  process 
was  also  described ;  it  lasted  about  one  hundred  and  fifty-two 
hours,  and,  having  been  prepared  by  Wooler's  process  for  Marsh's 
apparatus,  the  black  stain,  indicating  the  presence  of  arsenic,  was 
discovered,  which,  being  oxydized,  was  converted  into  arsenious 
acid ;  another  portion  being  oxydized,  and  tested,  proved  to  be 
metallic  arsenic ;  the  remainder  of  the  skeleton  was  next  dis- 
solved j'.nd  treated  by  Wrensch's  process,  when  it  produced  the 
black  metallic  arsenic. 

The  witness  said  that  he  had  not  mentioned  all  his  experi- 
ments, for  himself  and  assistant  had  been  employed  thereon 
almost  incessantly  since  the  day  the  body  came  into  his  charge, 
up  to  the  present  time.  Estimated  the  amount  of  arsenic 
found  at  about  two  grains ;  should  estimate  that  there  was  loss 
of  the  metal  in  the  process ;  if  one  should  examine  a  body, 
and  there  was  an  ounce,  or  half  an  ounce,  the  loss  would 
be  small,  but  when  there  would  be  only  six  grains  or  so,  in  a 
large  body,  which  should  be  subjected  to  all  these  processes, 
unquestionably  a  great  portion  would  be  lost ;  it  was  very  diffi- 
cult to  estimate  the  quantity  of  arsenic  in  the  body,  yet,  on 
consultation  with  his  assistants,  he  thought  that  from  four  to  six 
grains  were  in  the  body  ;  all  the  articles  used  in  the  investigation 
were  new,  and  purchased  for  the  purpose  that  there  might  be  no  pos- 
sibility of  the  arsenic  being  thus  introduced,  and  all  other  articles 
used  in  it  were  tested  to  ascertain  if  there  were  arsenic  in  them. 
We  removed  portions  from  the  different  parts  of  the  coffin  and 
fihroud;  they  were  tested  and  found  to  contain  no  aroenic;  three 


518  MEDICAL    EVIDENCE. 

samples  of  the  soil  about  the  coffin  was  also  subjected  to  an 
examination  in  different  ways  with  no  result ;  before  absorption 
in  the  body,  arsenic  may  be  removed  by  vomiting  or  evacuatio.i ; 
after  absorption,  it  is  removed  rapidly  from  the  system  through- 
the  kidneys;  the  removal  began  in  twenty-four  hours,  witness 
took  the  sixteenth  of  a  grain  of  arsenic  three  times  in  a  day; 
the  urine  voided  in  twenty-four  hours  was  examined  by  Waller's 
method,  and  metallic  arsenic  obtained ;  believed  that  arsenic  did 
not  exist  as  a  natural  constituent  of  the  human  body ;  he  believed 
this  because  chemistry  had  not  detected  it,  except  in  cases  where 
there  was  known  to  have  been  poisoning  by  arsenic. 

At  the  request  of  the  court,  witness  explained  the  difference 
between  metallic  arsenic  and  arsenious  acid,  sulphuret,  and  the 
other  forms  of  arsenic.  A  fatal  dose  of  arsenic  was  variously 
estimated  at  from  one  and  a  quarter  to  four  grains;  the  amount 
required  would  depend  upon  the  manner  and  form  given,  and 
other  circumstances,  which  the  witness  detailed.  In  the  case  of 
Mrs.  Stephens,  arsenic  was  found  in  the  contents  of  the  large 
and  small  intestines,  throughout  the  viscera,  in  the  adipose  and 
muscular  tissues,  in  the  skin,  and  in  the  bones;  the  symptoms 
of  arsenical  poisoning  in  the  human  body  varied  in  accordance 
with  the  circumstances,  most  commonly  vomiting,  pain  at  the  pit 
of  the  stomach,  almost  uniformly  described  as  a  burning  pain, 
pain  in  the  throat,  were  the  symptoms ;  it  nrght  also  attack  the 
nervous  system ;  in  one  case,  instant  death  had  been  produced ; 
it  might  produce  diarrhea,  though  not  always ;  it  might  produce 
swelling  of  parts  of  the  body,  or  peculiarly  anxious  appearance 
of  the  countenance ;  death  commonly  ensues  by  the  person  being 
in  a  state  of  collapse ;  witness  came  to  the  conclusion,  from  ob- 
servation, from  the  statements  of  standard  authors,  and  from 
the  analysis  of  two  hundred  cases  of  poisoning,  recently  made 
by  Dr.  Benjamin  Lee.  Witness  exhibited  the  analyses  of  Dr.  Lee 
in  tabular  statement.  In  cases  of  arsenical  poisoning,  the  urine 
was  scanty,  and  sometimes  suppressed;  the  feces  were  usually 
soft,  with  a  fetid  odor." 


LEADING    ADJUDICATED    CASES    IN   ARSENICAL    POISONING.        519 

William  Detmoid,  M.  D.,  sworn. — "  Witness  was  a  physician 
and  surgeon,  and  had  been  between  thirty  and  forty-nine  years, 
and  was  ibrmerly  professor  in  the  Medical  Department  of  the  New 
York  University ;  was  familiar  with  symptoms  of  arsenical  poi- 
soning; they  varied  with  the  amount  of  the  dose,  the  condition 
of  the  system,  and  other  circumstances,  which  they  could  not 
appreciate ;  those  which  were  almost  invariably  found  were  first, 
vomiting  of  the  contents,  afterward  streaked  with  blood,  an  intense 
burning  pain,  beginning  in  the  pit  of  the  stomach  and  proceeding 
downward,  making  the  whole  of  the  abdomen  painful ;  descended 
sometimes  to  the  anus,  and  ascended  to  the  throat  sometimes; 
the  burning  pain  was  unquenchable;  they  had  also  diarrhea, 
sometimes  streaked  with  blood,  an  anxious  face  and  sunken  eye, 
and  in  rare  cases  a  brilliant  look  of  the  eye,  excessive  prostration 
of  the  vital  powers,  the  pulse  quick  and  feeble,  and  the  limbs  often 
paralyzed;  the  extremities  became  nurnb;  the  urine  was  in  most 
cases  very  scanty,  of  a  high  color,  and  was  sometimes  entirely 
suppressed ;  the  mind  was  generally  free,  and  in  rare  cases  was 
there  delirium ;  this  was  to  be  remarked,  because  in  other  diseases 
having  similar  symptoms  there  was  delirium ;  there  was  paralysis 
generally,  but  in  some  cases  convulsions ;  -witness  had  not  men- 
tioned all  the  symptoms  which  might  occur  in  cases  of  arsenical 
poisoning,  but  had  confined  himself  to  those  which  were  the 
ordinary  symptoms. 

The  witness  described  the  pain  felt  by  persons  poisoned  by 
arsenic  to  be  a  fiery  pain  from  the  pit  of  the  stomach,  extending 
upward,  with  a  sore  mouth  and  lips,  and  extending  downward  to 
the  orifice  of  the  anus,  so  as  to  make  the  evacuation  painful.  In 
cases  where  death  follows  in  a  few  days  after  a  large  dose  being 
taken,  the  eyes  might  either  have  a  wild,  brilliant  appearance,  or 
be  sunk  deeply  in  the  head,  and  frequently  injected  with  blood ; 
but  in  cases  which  were  not  so  immediately  fatal,  and  where  death 
occurred  in  a  week  or  two  after  repeated  doses,  the  eyes  were  apt 
to  be  swollen ;  in  the  slower  cases  there  is  frequently  edematous 
swelling  of  the  lids,  with  pain  in  the  eyes ;  at  first,  the  color  of 


520  MEDICAL    EVIDENCE. 

the  vomited  matter  would  depend  much  on  the  contents  of  the 
stomach,  but  after  the  stomach  was  emptied  then  the  color  would 
depend  on  the  secretions,  and  the  ejected  masses  would  be  yellow, 
with  spots  or  streaks  of  blood ;  if  there  were  a  great  deal  of 
blood  it  might  be  much  darker;  the  vomited  matter  might  at 
times  be  of  the  color  of  coffee  grounds ;  the  patients  are  very 
frequently  exceedingly  restless,  tossing  their  arms  and  hands 
about ;  very  frequently  there  is  numbness  and  loss  of  sensation, 
also  paralysis  or  convulsive  twitchings,  showing  that  the  nerves 
are  affected ;  the  manner  of  death  varies  according  to  the  quan- 
tity taken ;  in  most  cases  it  occurs  under  collapse,  (cold,  clammy 
skin,  weak  pulse,  etc.;)  at  times  there  is  great  lethargy  when 
death  approaches;  great  prostration  is  noticeable  through  the 
whole  course  of  the  disease ;  laudanum  produced  drowsiness  and 
a  contraction  of  the  pupil,  which  in  large  doses  becomes  smaller; 
the  patient  becomes  drowsy,  and  before  death  may  have  convul- 
sions, together  with  coma ;  the  respiration  is  very  slow,  and  snor- 
ing,— a  loud  breathing,  that  can  be  heard ;  when  medical  men 
give  over  two  drachms  at  a  time,  it  is  an  exceptional  case ;  three 
and  a  half  ounces  between  nine  A.  M.  and  seven  P.  M.,  would 
certainly  be  a  colossal  dose;  when  arsenic  is  taken  in  successive 
small  doses  it  will  accumulate  in  the  body  more  rapidly  than  it 
would  be  thrown  out  again ;  it  is  removed  chiefly  by  the  kidneys, 
and  begins  about  the  loins ;  but  within  twenty-four  hours  after 
the  first  dose  there  is  reason  to  suppose  that  such  removal  goes 
on  until  the  whole  of  the  arsenic  leaves  the  system,  provided  no 
new  doses  are  introduced;  arsenic  would  be  eliminated  more 
rapidly  where  the  blood  and  all  the  functions  performed  their 
active  duties,  than  when  they  move  slowly ;  the  dose  thus  sup- 
posed, must  be  a  very  small  one;  if  1-1 6  ih  of  a  grain  it  is  diffi- 
cult to  find  minute  particles,  but  in  three  days  arsenic  could  not 
be  found  after  one  dose. 

A  dose  of  arsenic  begins  with  1-1 6th  of  a  grain,  which  would 
be  given  only  twice  a  day,  and  then  the  p  itient  would  be  watched 
for  poisonous  symptoms,  which  occur  sometimes  after  such  doses, 


LEADING    ADJUDICATED    CASES    IN    ARSENICAL   POISONING.        521 

and  then  it  would  cease  to  be  medical;  the  effects  of  the  medici- 
nal doses  of  arsenic  are  slow,  and  those  of  laudanum  very  rapid ; 
so  that  if  a  dose  of  arsenic  and  laudanum  be  given  at  the  same 
time,  the  laudanum  would  be  mainly  noticed,  while  in  larger  doses 
of  each  it  would  be  directly  the  reverse,  and  the  doses  of  arsenic 
would  be  but  slightly  influenced  by  the  laudanum,  which  would 
in  a  measure  relieve  the  pains  and  partially  stop  the  vomiting  and 
diarrhea,  but  all  these  would  be  overpowered  by  the  arsenic ;  the 
post  mortem  appearances  of  a  case  of  arsenical  poisoning  are  at  first 
negative;  thus,  if  death  occurred  rapidly  and  a  rent  was  found 
in  the  stomach,  they  would  not  go  further,  and  suspect  poisoning ; 
they  generally  find  a  slight  inflammation  extending  through  the 
intestines  from  the  mouth  to  the  anus,  with  black  particles  under 
the  mucous  membrane  which  could  not  be  washed  off;  there 
might  be  abrasion  of  the  skin  in  the  intestines ;  in  looking  at 
these  spots  or  patches  by  the  microscope,  probably  blood  would 
be  ibund ;  had  not  much  experience  in  anatomical  matters,  but 
arsenic  is  a  preventive  of  putrefaction  ;  in  a  great  many  cases, 
when  a  body  poisoned  by  arsenic  is  exhumed,  the  body  is  found 
in  a  state  of  good  preservation ;  the  non-existence  of  those  post 
mortem  appearances  described  would  prove  nothing,  but  their 
existence  would  be  proof  positive ;  witness  took  his  degree  at 
Gottingen.,  in  Germany.  The  suppression  of  the  urine  would 
make  the  arsenic  more  rapidly  fatal." 

Dr.  B.  Fordyce  Barker,  examined  by  Mr.  Sedgwick,  deposed. — 
*'  I  reside  at  No.  70  Union-place;  I  am  professor  of  Midwifery 
and  Diseases  of  Women,  in  New  York  Medical  College."  The 
witness  went  on  to  describe  the  symptoms  of  acute  poisoning  to 
be  vomiting,  nausea,  a  burning  in  the  throat,  commonly  called  by 
patients  "a  ball  of  fire,"  gradually  extending  over  the  whole  abdo- 
men. Professor  Barker  gave  testimony  similar  to  that  of  Dr. 
Detmoid  as  to  the  symptoms  and  effects  of  poisoning  by  arsenic 
acid. 

Mr.  Benjamin  W.  Macready  resides  at  No.  8  Ninth  street ;  is 
one  of  the  visiting  physicians  of  Belle vue ;  as  professor  of  toxi- 


522  MEDICAL   EVIDENCE. 

cology,  he  g;ive  lectures  on  the  subject  of  poisoning  by  arsenic ; 
the  witness  detailed  the  symptoms  which  are  manifested  in  a  per- 
son suffering  under  the  elfects  of  poison;  the  testimony  was,  in 
eflect,  similar  to  that  of  the  other  medical  witnesses. 

Ques. — What  would  be  the  effect  upon  the  human  system  of 
three  ounces  of  laudanum,  administered  between  a  period  of  ten 
hours?  (Objected  to,  and  objection  sustained.)  , 

Ans. — The  effect  of  that  amount  of  laudanum  on  ninety-nine 
persons  out  of  one  hundred  would  be  that  the  pulse  would  become 
slow,  and  in  most  cases  the  dose  would  be  sufficient  to  produce 
death,  and  also  a  drowsiness  out  of  which  it  would  be  difficult  to 
awaken  the  patient.  Patients  suffering  from  lock-jaw,  hydrophobia, 
etc.,  wherever  there  is  acute  pain,  violent  purging  and  certain 
diseases  of  the  nervous  system,  large  doses  of  laudanum  can  be 
borne.  Never  knew  of  a  single  disease  or  a  combination  of  dis- 
eases which  would  produce  the  symptoms  named  in  the  present 
case.  Arsenic  is  not  a  natural  constituent  of  the  human  system^ 
either  before  or  after  death.  Would  call  a  poisonous  dose  of  arse- 
nic one  grain ;  it  would  produce  unpleasant  effects ;  there  was 
evidence  of  a  case  where  two  grains  had  produced  death. 

Alanson  S.  Jones,  physician,  gave  similar  testimony  as  to  the 
symptoms  on  a  patient  under  the  effects  of  poison;  he  also  added 
that  the  disease  most  resembling  poisoning  by  arsenic  is  Asiatic 
cholera;  there  was  no  Asiatic  cholera  in  this  city  in  1857 ;  the- 
discharges  are  never  accompanied  with  blood  in  Asiatic  cholera ;  it 
does  occasionally  accompany  the  discharges  in  cases  of  poisoning; 
in  colic  the  pain  is  removed  by  pressure,  in  poisoning  it  is  in- 
creased by  pressure. 

Ques. — If  you  found  in  a  human  body  two  grains  of  arsenic, 
would  you  say  that  a  greater  amount  had  been  administered  ? 

Ans. — In  my  judgment  there  can  be  no  doubt  of  that;  a 
larger  amount  must  have  been  introduced  into  the  system,  be- 
cause arsenic  produces  vomiting,  and  more  or  less  must  be 
thrown  off 

Dr.  Adam  Zenker,  a  graduate  of  the  New  York  Medical  Col- 


LEADING    ADJUDICATED    GASES    IN    ARSENICAL    POISONING.        52 £ 

lege ;  studied  chemistry  in  Germany  under  Leibig  and  Wohleiy 
and  given  particular  attention  to  the  study  of  poisons  during 
the  last  eight  years;  sometimes  in  the  laboratory  they  poison 
animals  with  arsenic  and  poisonous  gases;  sometimes  the  coro- 
ners sent  them  poisoned  stomachs  and  intestines  to  examine.  Dr. 
Zenker  assisted  in  the  post  mortem  examination,  and  the  chemical 
analysis  of  the  body  of  Mrs.  Stephens,  and  testified  that  these 
investigations  were  conducted  with  great  care  and  caution,  as 
stated  by  preceding  witnesses.  lie  discovered  metallic  arsenic 
in  the  viscera  taken  from  the  body  of  Mrs.  Stephens  at  the  post 
mortem. 

Dr.  Bern  L.  Budd,  another  of  Dr.  Doremus's  assistants,  who 
had  pursued  the  practical  study  of  chemistry  lor  seventeen  years,, 
corroborated  the  testimony  of  Dr.  Doremus. 

On  Sunday,  October  3d,  he  went  to  Bellevue  Hospital  with 
Dr.  Doremus ;  separated  the  body  of  Mrs.  Stephens  Irom  the 
lower  extremities;  placed  the  whole  body  in  a  trunk  and  conveyed 
it  to  the  New  York  Medical  College.  Then  the  soft  parts  were 
removed  from  the  bones,  and  the  muscular  and  adipose  tissues 
and  the  skin  were  separated,  and  distinct  analyses  were  made. 
The  doors  of  the  laboratory  were  carefully  secured  and  sealed. 
A  portion  of  the  tissues  were  analyzed  at  a  laboratory  expressly 
fitted  up  for  the  purpose  in  Eighteenth  street. 

Witness  gave  a  detailed  statement  of  the  various  processes  and 
the  precautions  used  to  insure  the  purity  of  the  materials  used. 
In  one  case,  being  unable  to  procure  pure  nitrate  of  soda,  they 
were  obliged  to  make  it. 

From  two  pounds  and  two  ounces  of  muscular  tissue,  scraped 
from  the  spine,  they  obtained,  by  a  separate  analysis,  one-twenty- 
second  part  of  a  grain  of  arsenic.  Arsenic  was  also  obtained 
from  the  skin  and  bones,  and  from  urine  found  in  the  bladder. 
Arsenic  does  not  exist  in  the  human  body ;  they  had  proved  this 
by  the  careful  analysis  of  an  entire  human  body,  in  the  same 
manner  in  which  they  examined  that  of  Mrs.  Stephens.  Had 
since  analyzed  drugs  obtained  from  Shipley  &  Vanderhoof,  similar 


-524  MEDICAL   EVIDENCE. 

to  those  prescribed  for  Mrs.  Stephens  by  her  physicians,  anil 
they  obtained  no  arsenic. 

He  had  examined  the  subject  of  arsenic-eating,  said  to  prevail 
in  some  countries,  and  came  to  the  conclusion  that  it  was  all  the 
fabulous  fancy  of  travelers ;  the  standard  writers  all  discredited 
it,  and  an  American  physician  who  had  traveled  in  Hungary  and 
.Styria  had  recently  published  a  statement,  that  the  whole  story  is 
without  foundation.  He  had  lately  analyzed  the  entire  coffin  of 
Mrs.  Stephens,  and  it  contained  no  arsenic.  The  coffin-plate  was 
exhibited  in  court." 

In  the  able  charge  of  Judge  Roosevelt  to  the  jury,  in  this 
case,  he  said  of  the  Medical  Evidence:  "You  have  also  heard 
from  the  lips  of  some  of  the  most  distinguished  members  of  the 
medical  profession, — all  agreeing  in  the  main  features  of  their 
testimony, — what  are  the  effects  exhibited  before  death  where 
arsenic  has  been  taken  in  poisonous  quantities,  and  which  of  those 
effects  are  peculiar  to  that  one  cause.  On  these  statements, 
weighing  them  deliberately,  it  will  be  for  you  to  determine,  as  one 
of  the  steps  to  your  ultimate  conclusion,  whether  the  symptoms 
in  the  case  before  you  were,  in  point  of  fact,  the  same  substanti- 
ally as  those  attendant  on  arsenious  poisoning.  Should  the  com- 
parison, after  the  most  careful  study  of  every  particular,  still 
leave  any  doubt  on  the  mind,  you  will  then  have  the  right,  and 
it  will  be  your  duty,  to  look  to  another,  and  perhaps  the  most 
wonderful  feature  in  this  most  remarkable  case.  Post  mortem 
-examinations,  as  generally  understood,  are  dissections  of  the  body 
made  within  a  few  hours,  or,  at  furthest,  days,  after  the  death. 
In  the  instance  of  Mrs.  Stephens,  a  whole  ye:ir  had  elapsed. 
She  died  on  the  23d  of  September,  1857,  and  was  exhumed  on 
the  23d  of  September,  1858.  This  long  period  of  interment,  so 
fatal  in  ordinary  cases  to  both  observation  and  experiment,  has 
furnished,  it  is  said,  one  of  the  strongest  links  in  the  chain  of 
evidence  to  establish  the  fact  that  arsenious  poison,  howsoever 
and  by  whomsoever  administered,  was  the  true  cause  of  the 
•death  in  question.  The  body  was  in  a  state  of  preservation,  to 


LEADING   ADJUDICATED   CASES   IN7    ARSENICAL    POISONING.        525 

be  accounted  for,  says  the  chemists,  by  the  known  action  of  arse- 
nic, and  yielded,  under  the  operation  of  probably  the  most  perfect 
and  careful  analysis  ever  conducted  by  scientific  men,  a  sufficient 
quantity  of  the  poison  to  demonstrate  that  arsenic  had  been  taken 
into  the  system  before  death,  and  that  death  resulted  from  it.  I 
need  not  go  over  these  admirable  experiments,  which  so  wonder- 
fully illustrate  the  powers  of  science,  and  do  much  honor  to  Dr. 
Doremus  and  his  associates.  They  have  been  almost  repeated 
by  description  in  the  course  of  the  trial,  and  must  be  fresh  in 
your  recollection.  It  will  be  for  you  to  consider  them  candidly, 
and  to  give  them  as  on  a  question  of  life  and  death,  all  the  weight 
to  which,  in  your  deliberate  judgment,  making  due  allowance  for 
possible  error,  they  shall  seem  entitled." 

The  prisoner  was  convicted ;  but  the  case  is  still  before  the 
Court  of  Appeals,  on  important  questions  of  law. 

The  foregoing  report  of  the  most  interesting  case  of  arsenical 
poisoning  that  has  occurred  in  this  country,  is  not  as  complete 
as  we  would  desire.  We  have  been  obliged  to  rely  on  the  report 
given  to  the  daily  New  York  papers. 

The  leading  medical  witness,  Prof.  Doremus,  received  from  the 
State,  we  understand,  $4,000,  for  his  chemical  analysis  in  this 
case.  This  is  the  most  liberal  compensation  to  a  medical  witness, 
on  record,  in  this  country ;  or,  perhaps,  any  other. 

The  very  able  argument  of  Mr.  Ashmead,  for  the  State,  has 
been  published,  and  occupies  ninety  pages,  octavo. 


CHAPTER  XXXVI. 

POISONING  BY  STRYCHNIA. 

THE  celebrated  Palmer  case,  in  England,  produced  throughout 
the  whole  civilized  world  a  profound  alarm ;  illustrating  as  it  did, 
the  fact  that  strychnia,  in  the  hands  of  one  acquainted  with  its 
properties,  might  be  used  to  produce  death,  and  be  detected  only 
by  the  most  profound  skill  of  medical  men. 

The  first  case  upon  record,  of  importance,  where  strychnia  was 
used,  was  that  of  Miss  Abercromby,  who  was  poisoned  by  her 
brother-in-law  in  1830,  in  England.  So  crude  however  was  the 
knowledge  of  the  agent  at  that  time,  that  Wainright,  the  mur- 
derer, escaped  conviction,  although  there  is,  at  this  time,  no  doubt 
of  his  guilt,  judging  from  the  symptoms  that  attended  the  death 
of  Miss  Abercromby. 

Poisoning  by  this  article  is  constantly  becoming  more  frequent; 
and  the  courts,  counsel,  and  medical  men,  will  doubtless  soon  have 
to  deal  with  it,  as  often  as  with  arsenic,  in  criminal  matters. 

Strychnia  is  an  alkaloid,  extracted  from  nux  vomica,  an  eastern 
drug.  It  has  not  been  much  known  and  used  as  a  poison,  except 
by  medical  men,  until  recently,  being  discovered  in  1818. 

TAYLOR'S  CHEMICAL  ANALYSIS  AND  SYMPTOMS. 

The  pure  alkaloid. — Strychnia  is  a  white  crystalline  solid, 
scarcely  soluble  in  water.  It  is  dissolved  by  hot  rectified  spirit, 
and,  in  a  smaller  degree,  by  ether.  Its  alcoholic  solution  by  slow 
evaporation  deposits  strychnia  in  well-formed  crystals.  1.  It 
crystallizes  in  lengthened  cuneiform  octahedra,  which  have  been 
described  as  four-sided  prisms,  and  in  flattened  prisms,  crossing 

(526) 


POISONING   BY    STRYCHNIA.  527 

each  other  at  angles  of  60°.  2.  When  heated  on  platina-foil 
or  mica,  it  melts,  and  burns  like  a  resin,  with  a  yellow  flame, 
evolving  a  black  smoke.  When  heated  in  a  small  reduction-tube, 
ammonia  is  one  of  the  products  of  its  decomposition.  3.  It  re- 
quires 7000  parts  of  cold  water  and  2500  of  boiling  water  to  dis- 
solve it.  It  is  thus  separated  and  known  from  its  salts,  all  of 
which  are  very  soluble  in  water.  4.  It  is  not  very  soluble  in 
potash,  ammonia,  or  any  alkali ;  hence  an  alkali  gives  a  white  pre- 
cipitate in  the  saline  solutions  of  strychnia,  when  they  are  not 
too  much  diluted.  5.  It  is  very  soluble  in  chloroform.  6.  It  is 
dissolved  by  weak  acids,  mineral  and  vegetable.  7.  Strychnia 
and  all  its  salts  have  an  intensely  bitter  taste,  even  when  they  do 
not  form  more  than  the  aoh oih  part  by  weight  of  the  solution. 
8.  Like  the  solutions  of  all  the  alkaloids,  they  are  precipitated  by 
tannic  acid. 

Tests  in  the  solid  state. — 1.  Nitric  acid  does  not  produce  any 
change  of  color  in  pure  strychnia  or  its  salts ;  but  the  strychnia 
used  in  pharmacy  is  generally  reddened  by  this  acid,  owing  to  its 
containing  brucia.  2.  lodic  acid  produces  no  change  in  this 
alkaloid,  whereby  it  is  known  from  morphia.  3.  Cold  concen- 
trated sulphuric  acid  dissolves  it  without  producing  any  change 
of  color.  If  to  this  solution,  a  fragment  of  a  crystal  of  bichro- 
mate of  potash  is  added  and  allowed  to  remain  for  a  few  seconds, 
a  series  of  beautiful  colors  will  appear  wherever  the  bichromate 
meets  the  acid  mixture.  These  colors  commence  with  a  deep 
blue,  passing  through  violet,  purple,  and  red  tints,  until  by  long 
exposure  to  the  air,  the  mixture  assumes  a  light-red  color.  A 
fragment  of  ferrocyanide  of  potassium,  or  a  particle  of  peroxide 
of  manganese,  will  produce  the  same  play  of  colors.  As  they 
are  produced  by  finely  powdered  peroxide  of  manganese  (if  not 
added  in  too  large  quantity),  they  present  the  finest  variations 
of  tint,  while  the  changes  are  not  so  rapid.  These  results  are 
obtained  equally  with  the  salts  of  strychnia.  This  "  color-test " 
will  apply  to  the  smallest  visible  quantity  of  pure  strychnia  ob- 
tained by  the  evaporation  of  the  smallest  quantity  of  any  of  its 


528  MEDICAL   EVIDENCE. 

solutions.  It  should  be  applied,  not  to  the  solution,  but  to  the 
dry  residue;  the  proportion  of  acid  and  manganese  or  bichro- 
mate of  potash  must  be  adjusted  accordingly. 

Salts  of  strychnia  in  solution. — 1.  If  not  too  diluted,  potash 
and  all  alkalies  throw  down  a  white  precipitate  not  redissolved  by 
a  slight  excess  of  the  alkali.  2.  Carbonate  of  potash  slowly 
precipitates  a  diluted  solution  in  fine  prisms.  3.  Bicarbonate  of 
potash  does  not  precipitate  the  solution,  if  acid.  4.  Sulphocy- 
anide  of  potassium  produces  a  crystalline  precipitate,  appearing 
as  flattened  prisms  under  the  microscope.  5.  Ammonia  gives 
crystals  of  strychnia.  6.  Chromate  of  potash  produces  in  very 
diluted  solutions,  prismatic  crystals  of  a  golden-yellow  color,  and 
when  a  drop  of  sulphuric  acid  is  added  to  these  under  the  micro- 
scope, the  purple  and  violet  colors  are  immediately  brought  out. 
This  is  a  useful  test  for  strychnia,  first  suggested  by  Mr.  Horsley, 
of  Cheltenham.  7.  The  chlorides  of  platina  and  gold,  and  the 
iodide  of  potassium,  with  or  without  iodine,  produce  precipitates, 
the  crystalline  characters  and  polarizing  properties  of  which,  as 
observed  by  the  miscroscope,  are  in  some  respects  peculiar.  The 
iodide  of  potassium  gives,  even  in  very  diluted  solutions,  well- 
marked  stellated  prisms  with  fusiform  terminations.  8.  The 
solution  has  an  intensely  bitter  taste,  perceptible  even  when 
diluted  to  smooth  part,  or  according  to  some,  when  diluted  to 
Ttfio^th  part. 

Objections  to  the  tests. — There  are  no  objections  to  these  tests 
when  we  are  dealing  with  the  pure  alkaloid,  and  when  we  take 
care  that  the  more  salient  properties  of  crystallization  and  taste 
are  brought  out  as  well  as  the  production  of  color.  Some  enthusi- 
astic chemists  have  proposed  that  we  should  rely  on  color  alone, 
and  they  have  affirmed  that  there  is  no  substance  but  strychnia 
which  will  produce,  with  a  mixture  of  sulphuric  acid  and  bichro- 
mate of  potash,  ferricyanide  of  potassium,  or  peroxide  of  lend, 
the  colors  above  described.  This  was  stated  on  oath  by  the 
chemical  witnesses  for  the  defense  on  the  trial  of  William  Palmer, 
in  1856.  The  researches  of  Bernard  and  Pelikau,  published  in 


POISONING    BY    STRYCHNIA.  529 

1857,  have,  however,  made  known  to  the  scientific  world  that 
the  South  American  poison,  curara,  contains  an  alkaloid,  curarina, 
which  resembles  strychnia  in  the  action  of  the  color  tests,  brucia 
in  the  action  of  nitric  acid,  and  both  in  its  intense  bitterness. 
Sulphuric  acid  gives  a  variety  of  colors  with  organic  substances. 
Narceine  and  papaverine  are  rendered  by  it  blue ;  salicine  acquires 
a  pinkish-red  ;  pyroxanthine,  a  rich  sapphire-blue  color,  with  vari- 
ous shades  of  purple ;  cyclamine,  a  violet-red  color ;  and  cerebral 
matter,  a  violet  color  with  various  shades  of  red.  But  these  sub- 
stances are  colored  by  sulphuric  acid  irrespective  of  the  use  of 
bichromate  of  potash,  or  the  other  oxidizing  agents.  Aniline 
acquires  a  deep  sapphire-blue  color  when  a  mixture  of  sulphuric 
acid  and  bichromate  of  potash  is  added  to  it.  In  all  these  cases, 
it  is  true,  a  distinction  may  be  drawn,  provided  the  acid  and  the 
bichromate  be  separately  added,  and  not  used  in  a  mixed  state, 
as  recommended  by  Otto  and  some  other  analysts ;  yet  the  fact 
that  such  a  variety  of  colors  is  produced  by  sulphuric  acid  on 
organic  substances  should  teach  caution  in  drawing  inferences 
from  its  employment  in  cases  in  which  we  are  operating  on  the 
solids  or  liquids  of  a  dead  body.  On  the  whole,  in  Medico-legal 
practice,  it  would  be  unsafe  to  rely  upon  color  thus  produced  in 
organic  extracts,  unless  we  have  the  corroboration  derived  from 
crystalline  form  and  bitter  taste.  In  the  absence  of  the  latter, 
whatever  results  the  color  test  may  give,  there  can  be  no  cer- 
tainty that  strychnia  is  present. 

A  negative  result  must  be  received  also  with  equal  caution. 
Bocker  has  pointed  out  that  morphia,qtiinia,  certain  organic  acids, 
nitre,  common  salt,  and  sugar,  modify  or  prevent  the  reaction  of 
chromic  acid  on  strychnia.  An  analyst  ought  therefore  to  be  well 
assured  of  the  purity  of  the  substance  which  he  is  examining 
before  he  comes  to  a  conclusion  that  strychnia  is  present  or 
absent  in  an  article  presented  for  analysis. 

Organic  mixtures. — Numerous  processes  have  been  suggested 
for  the  detection  of  this  poison  in  the  contents  of  the  stomach 
and  in  organic  liquids  generally.     It  is  unnecessary  to  describe 
34 


530  MEDICAL    EVIDENCE. 

the  whole  of  them.  The  general  principle  of  separation  is  nearly 
the  same  in  all.  The  alkaloid  is  first  rendered  soluble  by  the  use 
of  a  diluted  acid, — the  tartaric,  oxalic,  acetic,  sulphuric,  hydro- 
chloric, and  phosphoric  have  all  been  used  for  this  purpose.  The 
alkaloid  is  then  precipitated  by  carbonate  of  potash,  and  redis- 
solved  in  alcohol  mixed  with  acetic  acid ;  or,  after  concentration, 
the  acid  liquid  is  neutralized  by  potash  or  its  carbonate,  and  the 
alkaloid  removed  by  ether;  or  lastly,  the  salt  of  strychnia  is 
removed  from  the  organic  liquid  by  agitating  it  with  animal  char- 
coal, and  it  is  then  separated  from  the  charcoal  by  rectified  spirit. 
Among  these  processes,  that  which  is  least  open  to  objection  is 
based  on  the  principle  first  suggested  by  M.  Stas.  1.  A  small 
quantity  of  acetic  acid  (a  few  drops  to  an  ounce)  is  added  to 
the  liquid  or  to  the  solid  very  finely  cut  up.  A  sufficient 
quantity  of  water  is  used  to  make  a  thin  liquid,  a  small  quantity 
of  alcohol  is  added,  and  the  whole  is  now  digested  in  a  water-bath, 
with  frequent  stirring.  2.  After  an  hour's  digestion,  the  liquid  is 
strained,  filtered,  and  pressed ;  the  residue  is  washed  with  more 
water  and  alcohol  until  all  the  soluble  matter  is  removed.  The 
liquid  is  evaporated  in  a  water-bath  to  one-half,  and  the  residue 
is  then  treated  with  hot  alcohol  and  filtered.  3.  The  alcoholic 
solution  (containing  acetate  of  strychnia)  is  evaporated,  and  the 
residue  is  digested  with  a  small  quantity  of  distilled  water.  This 
is  filtered,  and  placed  in  a  stoppered  tube ;  it  is  then  rendered 
alkaline  by  potash,  and  shaken  with  twice  its  volume  of  rectified 
ether.  The  ethereal  liquid  is  poured  off  and  allowed  to  evaporate 
spontaneously,  when  strychnia,  if  present,  will  be  left  in  small 
circular  spots,  which  appear  crystalline  under  the  microscope. 
The  crystalline  form,  the  bitter  taste,  and  the  effect  produced  by 
sulphuric  acid  and  bichromate  of  potash,  will  enable  the  analyst 
to  determine  whether  the  ethereal  residue  does  or  does  not  contain 
the  alkaloid  strychnia.1 

SYMPTOMS. — When  strychnia  is  taken  in  solution  it  has  a  hot 

1  Taylor  on  Poisons,  689—693. 


POISONING    BY    STRYCHNIA.  531 

and  intensely  bitter  taste.  This,  of  course,  is  not  necessarily 
perceived  when  it  is  swallowed  in  the  form  of  a  pill.  At  an 
interval  varying  from  a  few  minutes  to  an  hour  or  longer,  and 
sometimes  without  any  premonitory  symptoms,  the  person  is 
suddenly  seized  with  a  feeling  of  suffocation  and  great  difficulty 
of  breathing.  There  are  twitchings  and  jerkings  of  the  head 
and  limbs, — a  shuddering  or  trembling  of  the  whole  frame. 
Tetanic  convulsions  then  commence  suddenly  with  great  violence, 
and  nearly  all  the  muscles  of  the  body  are  simultaneously  affect- 
ed. The  limbs  are  stretched  out,  the  hands  clenched, — the  head, 
after  some  convulsive  jerkings,  is  bent  backward,  the  whole  body 
is  as  stiff  as  a  board, — and  assumes,  by  increase  of  the  convul- 
sions, a  bow-like  form,  (episthotonos,)  being  arched  in  the  back 
and  resting  on  the  he;id  and  heels.  During  the  fit  the  head  is 
firmly  bent  backward,  and  the  soles  of  the  feet  are  incurvated  or 
arched  and  everted.  The  abdomen  is  hard  and  tense, — the  chest 
spasmodically  fixed, — so  that  respiration  appears  to  be  arrested, — 
the  face  assumes  a  dusky  or  congested  appearance,  with  a  drawn 
and  anxious  aspect,  the  eyeballs  are  prominent  and  staring,  and 
the  lips  are  livid.  The  features  have  been  observed  to  assume 
the  peculiar  appearance  given  by  the  sardonic  grin,  (risus  sar- 
donicus.)  The  patient  complains  of  a  choking  sensation,  with 
thirst  and  dryness  of  the  throat.  An  attempt  to  drink  is  often 
accompanied  with  a  spasmodic  closure  of  the  jaws,  by  which  the 
glass  or  vessel  is  broken  or  bitten.  In  several  cases  of  poisoning 
by  strychnia  there  has  been  from  the  outset  a  sense  of  impend- 
ing dissolution,  and  one  of  the  first  exclamations  made  by  the 
.  patient  has  been,  "  I  shall  die."  The  intellect  is  generally  clear 
and  unclouded  during  the  intervals  of  paroxysms,  and  the  patient 
appears  to  have  a  full  sense  of  his  danger.  After  a  succession 
of  fits  and  generally  shortly  before  death,  there  may  be  a  loss  of 
consciousness.  This  was  observed  in  a  case  which  occurred  to 
Dr.  Ogston,  and  in  that  of  Mrs.  Dove.  Pain  is  occasionally  felt 
at  the  pit  of  the  stomach,  and  during  the  paroxysms  there  is 
severe  suffering  from  the  violent  spasms  of  the  voluntary  muscles. 


532  MEDICAL   EVIDENCE. 

The  consciousness  of  the  access  of  the  fit  is  very  remarkable. 
The  patient  calls  out  loudly,  "  It  is  coming,"  and  screams  or 
shrieks,  asking  at  the  .same  time  to  be  held.  He  in  vain  seeks 
for  relief  in  gasping  for  air  and  in  requiring  to  be  turned  oveiy 
moved,  or  held.  Sometimes  there  is  frothing  at  the  mouth,  and 
this  iroth  is  bloody  from  injury  to  the  tongue.  With  respect  to 
the  muscles  of  the  lower  jaw, — these,  which  are  the  first  to  be 
affected  in  tetanus  from  disease,  are  generally  the  last  to  be  af- 
fected by  the  poison.  The  jaw  is  not  primarily  attacked,  and  is 
not  always  fixed  during  the  paroxysm.  It  is  relaxed  in  the 
interval,  and  the  patient  can  frequently  speak  and  swallow. 
When  the  jaw  has  been  fixed  by  spasm,  unlike  the  lock-jaw 
of  disease,  this  has  come  on  suddenly  in  full  intensity,  with 
tetanic  spasms  in  other  parts,  and  there  are  intermissions  which 
are  not  witnessed  in  the  tetanus  of  disease.  The  sudden  and 
universal  convulsion  affecting  the  voluntary  muscles  has  been 
sometimes'  so  violent  that  the  patient  has  been  raised  up  and  even 
jerked  off  the  bed.  During  the  convulsions  the  pulse  is  very 
quick.  After  an  interval  of  half  a  minute  to  one  or  two  minutes, 
the  convulsions  subside;  there  is  an  intermission, — the  patient 
feels  exhausted  and  is  sometimes  bathed  in  perspiration.  It  has 
been  noticed  in  some  of  these  cases  that  the  pupi's  were  dilated 
during  the  paroxysm,  while  in  the  intermission  they  were  con- 
tracted. Slight  causes,  such  as  the  attempt  to  move,  or  a  sudden; 
disturbance,  or  even  touching  the  person  lightly,  will  frequently 
bring  on  a  recurrence  of  the  convulsions.  In  cases  likely  to  prove 
fatal,  they  rapidly  succeed  each  other  and  increase  in  severity  and 
duration,  until  at  length  the  patient  dies  exhausted.  The  tetanic 
symptoms  produced  by  strychnia,  when  once  clearly  established, 
progress  rapidly  either  to  death  or  recovery.  The  duration  of 
the  case,  when  the  symptoms  have  set  in,  is  reckoned  by  minutes, 
while  in  the  tetanus  of  disease  when  fatal,  it  is  reckoned  by  hours, 
days,  and  even  weeks.  As  a  general  statement  of  the  course  of 
these  cases  of  poisoning, — within  two  hours  from  the  commence- 
ment of  the  symptoms  the  person  either  dies  or  recovers,  accord- 


POISONING    BY    STRYCHNIA.  533 

ing  to  the  severity  of  the  paroxysms  and  the  strength  of  hi? 
constitution."1 

As  to  detecting  the  poison  in  the  body  after  death,  the  follow- 
ing points,  Mr.  Taylor  thinks,  are  established :  "I.  That  strych- 
nia may  be  found  in  the  stomach  as  in  other  cases  of  poisoning, 
when  it  has  not  been  entirely  absorbed,  and  the  stomach  and 
contents  have  been  properly  preserved  for  analysis.  2.  That  a 
putrefied  condition  of  the  body  does  not  interfere  with  its  detec- 
tion and  separation  when  present  in  the  remains.  3.  That  in 
some  cases,  when  given  in  small  doses,  and  in  other  cases,  even 
in  large  doses,  although  it  may  be  detected  in  the  stomach,  (if 
•carefully  preserved,)  it  can  not  be  detected  in  the  absorbed  state. 
in  the  blood  and  tissues.  4.  That  there  are  no  facts  derived 
from  experiments  on  animals,  or  from  observations  on  the  human 
body,  to  justify  the  statement,  that  in  all  cases  of  poisoning  by 
strychnia,  the  poison  must  by  proper  chemical  processes  be  cer- 
tainly detected.  5.  That  in  strychnia  poisoning,  as  in  morphia 
and  other  forms  of  poisoning,  a  person  may  live  a  sufficient  time 
for  the  poison  to  be  entirely  removed  from  the  stomach,  and  in 
this  case  he  may  die  without  a  trace  of  strychnia  being  found  in 
the  blood,  tissues,  or  any  part  of  the  body."2 

1  Taylor  on  Poisons,  681-682. 

2  idem,  695. 


CHAPTER  XXXVII. 

TESTIMONY  OF  CURLING,  TODD,  BRODIE,  CHRISTISON  AND  TAYLOR, 
IN  THE  PALMER  CASE. 

THERE  is  very  great  danger  that  the  symptoms  of  convulsions 
resulting  from,  a  poisonous  dose  of  strychnine,  may  be  mistaken 
for  genuine  tetanus.  This  has  doubtless  sometimes  happened,  aa 
in  the  case  of  Miss  Abercromby. 

On  the  trial  of  Palmer,  the  defense  took  the  grounds,  that  the 
convulsions  testified  to  as  existing,  before  Cook  died,  were  either 
idiopathic  or  traumatic  tetanus,  and  not  the  effect  of  strychnine 
poisoning. 

The  most  distinguished  physicians  and  chemists  of  England 
and  Scotland  were  present  and  testified  on  this  point.  Among 
them  were  Curling,  Todd,  Brodie,  Christison,  Taylor  and  Solly. 
Their  testimony  so  clearly,  and  definitely  settles  the  peculiar 
characteristics  of  the  different  forms  of  tetanus,  we  give  it  from 
a  pamphlet  report  of  the  Palmer  case,  published  by  the  London 
Times. 

Dr.  Curling,  surgeon  to  the  London  Hospital,  and  author  of  a 
work  upon  tetanus,  testified  as  follows :  "  Tetanus  means  a  spas- 
modic affection  of  the  voluntary  muscles.  Of  true  tetanus  there 
are  only  two  descriptions, — idiopathic  and  traumatic.  There  are 
other  diseases  in  which  we  see  contractions  of  the  muscles,  but  we 
should  not  call  them  tetanus.  Idiopathic  tetanus  is  apparently 
self-generated ;  traumatic  proceeds  from  a  wound  or  sore.  Idio- 
pathic tetanus  arises  from  exposure  to  damp  or  cold,  or  from  the 
irritation  of  worms  in  the  alimentary  canal.  It  is  not  a  disease 
of  frequent  occurrence.  I  have  never  seen  a  case  of  idiopatic 
tetanus,  although  I  have  been  surgeon  to  the  London  Hospital 

(534) 


TESTIMONY    IN   THE   PALMER    CASE.  535 

for  twenty-two  years.  Cases  of  traumatic  tetanus  are  much  more 
frequent.  Speaking  quite  within  compass,  I  have  seen  fifty 
cases.  I  believe  one  hundred  would  be  nearer  the  mark.  The 
disease  first  manifests  itself  by  suffering  about  the  jaws  and  back 
of  the  neck.  Rigidity  of  the  muscles  of  the  abdomen  afterward 
sets  in.  A  dragging  pain  at  the  pit  of  the  stomach  is  an  almost 
constant  attendant.  In  many  instances  the  muscles  of  the  back 
are  extensively  affected.  These  symptoms,  though  continuous, 
are  liable  to  aggravations  into  paroxysms.  As  the  disease  goes 
on,  these  paroxysms  become  more  frequent  and  more  severe. 
When  they  occur,  the  body  is  drawn  backward ;  in  some  instances, 
though  less  frequently,  it  is  bent  forward.  A  difficulty  of  swal- 
lowing is  a  very  common  symptom,  and  also  a  difficulty  of  breath- 
ing during  the  paroxysm.  The  disease  may,  if  fatal,  end  in  two 
ways.  The  patient  may  die  somewhat  suddenly  from  suffocation, 
owing  to  the  closure  of  the  opening  of  the  windpipe ;  or  he  may 
be  worn  out  by  the  severe  and  painful  spasms ;  the  muscles  may 
relax,  and  the  patient  gradually  sink  and  die.  The  disease  is 
generally  fatal.  The  locking  of  the  jaw  is  an  almost  constant 
symptom  attending  traumatic  tetanus, — I  may  say  a  constant 
symptom.  It  is  not  always  strongly  marked,  but  generally  so. 
It  is  an  early  symptom.  Another  symptom  is  a  peculiar  expres- 
sion of  the  countenance. 

To  Lord  Campbell. — I  believe  this  is  not  peculiar  to  traumatic 
tetanus,  but  my  observation  is  taken  from  such  cases. 

Witness. — There  is  a  contraction  of  the  eyelids,  a  raising  of 
the  angles  of  the  mouth  and  contraction  of  the  brow.  In  trau- 
matic tetanus  the  lower  extremities  are  sometimes  affected,  and 
sometimes,  but  somewhat  rarely,  the  upper  ones.  When  the 
muscles  of  the  extremities  are  affected,  the  time  at  which  that 
occurs  varies.  If  there  is  no  wound  in  the  arms  or  legs,  the 
extremities  are  generally  not  affected  until  late  in  the  progress  of 
the  disease.  I  never  knew  or  read  of  traumatic  tetanus  being  pro- 
duced by  a  sore  throat  or  by  a  chancre.  In  my  opinion  a  syphi- 
litic sore  would  not  produce  tetanus.  I  know  of  no  instance 


536  MEDICAL   EVIDENCE. 

where  a  syphilitic  sore  has  led  to  tetanus.  I  should  think  it  an 
unlikely  cause.  The  time  in  which  traumatic  tetanus  causes 
death  varies  from  twenty-four  hours  to  three  or  four  days,  or 
longer.  The  shortest  period  that  ever  came  to  my  knowledge 
was  eight  or  ten  hours.  The  disease  when  once  commenced,  is 
continuous. 

Attorney-General. — Did  you  ever  know  of  a  case  in  which  a 
man  was  attacked  one  day,  had  twenty-four  hours'  respite,  and 
was  then  attacked  the  next  day  ? — Never.  I  should  say  that 
such  a  case  could  not  occur. 

Attorney-General. — You  have  heard  the  account  given  by  Mr. 
Jones  of  the  death  of  the  deceased  ; — were  the  symptoms  there 
consistent  with  any  forms  of  traumatic  tetanus  that  has  ever 
come  under  your  observation  ? — No. 

Attorney-General. — What  distinguishes  it  from  such  cases? — 
The  sudden  onset  of  the  disease.  In  all  cases  which  have  come 
under  my  notice,  the  disease  was  preceeded  by  the  milder  symp- 
toms of  tetanus,  gradually  proceeding  to  the  complete  develop- 
ment. 

Attorney-General. — Were  the  symptoms  described  by  the 
woman,  Mills,  as  being  present  on  Monday  night,  those  of 
tetanus  ? — No ;  not  of  the  tetanus  of  disease. 

Attorney-General. — There  was  not,  in  your  opinion,  either 
idiopathic  or  traumatic  tetanus? — No. — Why  are  you  of  that 
opinion? — The  sudden  onset  of  the  spasms  and  their  rapid  sub- 
sidence, are  consistent  with  neither  of  the  two  forms  of  tetanus. 

Attorney-General. — Is  there  not  what  is  called  hysteric  tetanus? 
— Yes.  It  is  rather  hysteria  combined  with  spasms,  but  is  some- 
times called  hysteric  tetanus.  I  have  known  of  no  instance  of 
its  proving  fatal,  or  of  it  occurring  to  a  man.  Some  poisons 
will  produce  tetanus.  Nux  vomica,  acting  through  its  poisons, 
strychnine  and  brucia,  poisons  of  a  cognate  character,  produce 
that  effect.  I  never  saw  a  case  of  either  human  or  animal  life 
destroyed  by  strychnine." 

Dr.  Todd,  physician  at  King's  College  Hospital,  having  held 


TESTIMONY    IN    THE   PALMER    CASE.  537 

that  office  twenty  years,  and  author  of  a  work  on  physiology, 
testified,  that  he  agreed  with  Dr.  Curling  in  his  distinction  between 
idiopathic  and  traumatic  tetanus.  He  said :  "  I  have  seen  two 
cases  of  what  appeared  to  me  to  be  idiopsithic  tetanus,  but  such 
cases  are  rare  in  this  country.  I  define  idiopathic  tetanus  to  be 
that  form  of  the  disease  which  is  produced  without  external  wound, 
apparently  from  internal  causes, — from  constitutional  causes.  In 
my  opinion,  the  term,  tetanus,  ought  not  to  be  applied  to  disease 
produced  by  poisons,  but  I  should  call  the  symptoms  tetanic,  in 
order  to  distinguish  the  character  of  the  convulsions.  I  have 
observed  cases  of  traumatic  tetanus.  Except  that  in  all  such 
cases  there  is  some  lesion,  the  symptoms  are  precisely  the  same 
as  those  of  idiopathic  tetanus.  The  disease  begins  with  stiffness 
of  the  jaw.  The  symptoms  gradually  develop  themselves,  and 
extend  to  the  muscles  of  the  trunk.  When  the  disease  has 
begun,  there  are  remissions,  but  they  are  not  complete;  only  a 
diminution  of  the  severity  of  the  symptoms,  not  a  total  sub- 
sidence. The  patient  does  not  express  himself  as  completely, 
only  quite  comfortable.  I  speak  from  my  own  experience.  As 
to  time,  the  cases  may  be  divided  into  twcr  classes.  Acute  cases 
"will  terminate  in  three  or  four  days,  chronic  cases  will  go  on  as 
long  as  from  nineteen  to  twenty-two  or  twenty-three  days,  and 
perhaps  longer.  I  do  not  think  I  have  known  a  case  where 
death  occurred  within  four  days ;  cases  are  reported  in  which  it 
occurred  in  a  shorter  period.  In  tetanus  the  extremities  are 
affected,  but  not  so  much  as  the  trunk.  Their  affection  is  a  late 
symptom.  The  locking  of  the  jaw  is  an  early  one.  Sometimes 
the  convulsions,  epilepsy,  assume  somewhat  of  a  tetanic  charac- 
ter, but  they  are  essentially  distinct  from  tetanus.  In  epilepsy 
the  patient  always  loses  consciousness.  Apoplrxy  never  produces 
tetanic  convulsions.  Perhaps  I  may  be  allowed  to  say,  that 
when  there  is  effusion  of  blood  upon  the  brain,  and  a  portion  of 
the  brain  is  involved,  the  muscles  may  be  thrown  into  short 
tetanic  convulsions.  In  such  cases  the  consciousness  would  be 
destroyed.  Having  heard  described  the  symptoms  attending  the 


538  MEDICAL   EVIDENCE. 

death  of  the  deceased,  and  the  post  mortem  examination,  I  am 
of  opinion  that  in  this  case  there  was  neither  apoplexy  nor  epilepsy. 
I  never  knew  tetanus  arise  either  from  syphilitic  sores  or  from 
sore  throat.  There  are  poisons  which  will  produce  tetanic  con- 
vulsions. The  principle  of  those  poisons  are  nux  vomica,  and 
those  which  contain,  as  their  active  ingredients,  strychnine,  and 
brucia,  I  should  not  like  to  give  to  a  human  subject  a  quarter 
of  a  grain.  I  think  that  it  is  not  unlikely  that  half  a  grain 
might  destroy  life ;  and  I  believe  that  a  grain  certainly  would. 
I  think  that  hall'  a  grain  would  kill  a  cat.  The  symptoms  which 
would  ensue  upon  the  administration  of  strychnine  when  given 
in  solution, — and  I  believe  that  poisons  of  that  nature  act  more 
rapidly  in  a  state  of  solution  than  in  any  other  form, — would 
develop  themselves  in  ten  minutes  after  it  was  taken,  if  the  dose 
were  a  large  one ;  if  not  so  large,  it  might  be  half  an  hour  before 
they  appeared.  Those  symptoms  would  be  tetanic  convulsions 
of  the  muscles,  more  especially  those  of  the  spine  and  neck;  the 
head  and  back  would  be  bent  back,  and  the  trunk  would  be 
bowed  in  a  marked  manner ;  the  extremities  also  would  be  stif- 
fened and  jerked  out.  The  stiffness,  once  set  in,  would  never 
entirely  disappear;  but  fresh  paroxysms  would  set  in,  and  the  jerk- 
ing rigidity  would  reappear ;  and  death  would  probably  ensue  in  a 
quarter  of  an  hour  or  so.  The  difference  between  tetanus  pro- 
duced by  strychnine  and  other  tetanus  is  very  marked.  In  th& 
former  case  the  duration  of  the  symptoms  is  very  short,  and 
instead  of  being  continuous  in  their  development,  they  will  subside 
if  the  dose  has  not  been  strong  enough  to  produce  death,  and 
will  be  renewed  in  fresh  paroxysms ;  whereas,  in  other  descrip- 
tions of  tetanus,  the  symptoms  commence  in  a  mild  form,  and 
become  stronger  and  more  violent  as  the  disease  progresses.  The 
difficulty  experienced  in  breathing  is  common  alike  to  tetanus, 
properly  so  called,  and  to  tetanic  convulsions  occasioned  by  strych- 
nine, arising  from  the  pressure  upon  the  respiratory  muscles.  I 
think  it  was  remarkable  that  the  deceased  was  able  to  swallow, 
and  that  there  was  no  fixing  of  the  jaw,  which  would  have  been 


TESTIMONY    IN   THE   PALMER    CASE.  539 

the  case  with  tetanus  proper,  resulting  either  from  a  wound  or 
from  disease.  From  all  the  evidence  I  have  heard,  I  think  that 
the  symptoms  which  presented  themselves  in  the  case  of  Mr. 
Cook,  arose  from  tetanus  produced  by  strychnine.  I  do  not 
agree  with  Dr.  Taylor,  or  the  authorities,  in  the  opinion,  that  in 
cases  of  tetanus,  animals  died  asphyxiated.  If  they  did,  we  should 
invariably  have  the  right  side  of  the  heart  full  of  blood,  which  is 
not  the  case.  I  think  that  the  term,  asphyxiated,  or  suffocated, 
is  often  very  loosely  used.  I  know  from  my  reading  that  morphia 
sometimes  produces  convulsions ;  but  I  believe  that  they  would 
be  of  an  epileptic  character.  I  think  that  the  symptoms  from 
morphia  would  be  longer  deferred  in  making  their  appearance 
than  from  strychnine,  but  I  can  not  speak  positively  on  the  point 
Morphia,  like  strychnia,  is  a  vegetable  poison.  I  have  not 
observed  in  animals  the  jaw  fixed  after  the  administration  of 
strychnine." 

Sir  Benjamin  Brodie  testified  as  follows :  "  I  have  been  for 
many  years  senior  surgeon  to  St.  George's  Hospital,  and  have 
had  considerable  experience  as  a  surgeon.  In  the  course  of  my 
practice  I  have  had  under  my  care  many  cases  of  death  from 
tetanus.  Death  from  idiopathic  tetanus  is,  according  to  my 
experience,  very  rare  in  this  country.  The  ordinary  tetanus  in 
this  country  is  traumatic  tetanus.  I  have  heard  the  symptoms 
which  accompanied  the  death  of  Mr.  Cook,  and  I  am  of  opinion 
that  so  far  as  there  was  a  general  contraction  of  the  muscles  they 
resembled  those  of  traumatic  tetanus ;  but  as  to  the  course  those 
symptoms  took,  they  were  entirely  different.  I  have  attended 
to  the  detailed  description  of  the  attack  suffered  by  Mr.  Cook 
on  the  Monday  night,  its  ceasing  on  Tuesday,  and  its  renewal  on 
the  Tuesday  night.  The  symptoms  of  traumatic  tetanus  always 
begin,  so  far  as  I  have  seen,  very  gradually,  the  stiffness  of  the 
lower  jaw  being,  I  believe,  invariably,  the  symptom  first  com- 
plained of, — at  least,  so  it  has  been  in  my  experience.  The  con- 
traction of  the  muscles  of  the  back  is  always  a  later  symptom, — 
generally  much  later.  The  muscles  of  the  extremities  are  affected 


540  MEDICAL    EVIDENCE. 

in  a  much  less  degree  than  those  of  the  neck  and  trunk,  except 
in  some  cases  where  the  injury  has  been  in  the  limb,  and  an  early 
symptom  has  been  spasmodic  contraction  of  the  muscles  of  the 
limb.  I  do  not  myself  recollect  a  case  of  ordinary  tetanus,  in 
which  occurred  that  contraction  in  the  muscles  of  the  hand,  which 
I  understand  was  stated  to  have  taken  place  in  this  instance. 
Again,  ordinary  tetanus  rarely  runs  its  course  in  less  than  two 
or  three  days,  and  often  is  protracted  to  a  much  longer  period.  I 
knew  one  case  only  in  which  the  disease  was  said  to  have  termi- 
nated in  so  short  a  time  as  twelve  hours;  but  probably  in  th.it 
case  the  early  symptoms  had  been  overlooked.  Again,  I  never 
knew  the  symptoms  of  ordinary  tetanus  to  last  for  a  few  minutes 
and  then  subside,  and  then  come  on  again  after  twenty-four 
hours.  I  think  that  these  are  the  principal  points  of  difference 
which  I  perceive  between  the  symptoms  of  ordinary  tetanus  and 
those  which  I  have  heard  described  in  this  case.  I  have  not  wit- 
nessed tetanic  convulsions  from  strychnine  on  animal  life.  I  do 
not  believe  that  death,  in  the  case  of  Mr.  Cook,  arose  from  what 
we  ordinarily  call  tetanus, — either  idiopathic  or  traumatic.  I 
never  knew  tetanus  result  from  sore  throat  or  from  chancre,  or 
:any  other  form  of  syphilitic  disease.  The  symptoms  were  not 
the  result  either  of  apoplexy  or  epilepsy.  Perhaps  I  had  bettei 
say  at  once  I  never  saw  a  case  in  which  the  symptoms  that  1 
have  heard  described  here,  arose  from  any  disease.  When  I  say 
that,  of  course  I  refer  to  no  particular  symptoms,  but  to  the 
general  course  which  the  symptoms  took." 

Professor  Christison  testified  as  follows :  "  I  am  fellow  of  the 
Royal  College  of  Physicians,  and  Professor  of  Materia  Medica 
to  the  University  of  Edinburgh :  I  am  also  author  of  a  work  on 
the  subject  of  poisons,  and  I  have  directed  a  good  deal  of  my 
attention  to  strychnia.  In  my  opinion,  it  acts  by  absorption  into 
the  blood,  and  through  that  upon  the  nervous  system.  I  have  seen 
its  effect  on  a  human  subject,  but  not  a  fatal  case.  I  have  seen 
it  tried  upon  pigs,  rabbits,  cats,  and  one  wild  boar.  I  first  di- 
rected my  attention  to  the  poison  in  1820,  in  Paris.  It  had  been 


TESTIMONY    IN   THE   PALMER    CASE.  541 

discovered  two  years  before  in  Paris.  In  most  of  my  experi- 
ments upon  animals,  I  gave  very  small  doses, — a  sixth  of  a 
grain ;  but  I  once  administered  a  grain.  I  can  not  say  how 
small  a  dose  would  cause  the  death  of  an  animal  by  administra- 
tion into  the  stomach.  I  generally  applied  it  by  injection  through 
AH  incision  in  the  cavity  of  the  chest.  A  sixth  part  of  a  grain 
so  administered  killed  a  dog  in  two  minutes.  I  once  adminis- 
tered to  a  rabbit,  through  the  stomach,  a  dose  of  a  grain.  I  saw 
Dr.  Taylor  administer  three-quarters  of  a  grain  to  a  rabbit,  and 
it  was  all  swallowed  except  a  very  small  quantity.  The  symp- 
toms are  nearly  the  same  in  rabbits,  cats,  and  dogs.  The  first  is 
a  slight  tremor  and  unwillingness  to  move ;  then  frequently  the 
animal  jerks  its  head  back  slightly  ;  soon  after  that  all  the  symp- 
toms of  tetanus  come  on,  which  have  so  often  been  described  by 
the  previous  witnesses.  When  the  poison  is  administered  by  the 
stomach,  death  generally  takes  place  between  a  period  of  five 
minutes  and  five-and-twenty  minutes  after  the  symptoms  first 
make  their  appearance.  I  have  frequently  opened  the  bodies  of 
animals  thus  killed,  and  have  never  been  able  to  trace  any  effect 
of  the  poison  upon  the  stomach  or  intestines,  or  upon  the  spinal 
cord  or  brain,  that  I  could  attribute  satisfactorially  to  the  poison. 
The  heart  of  the  animal  generally  contained  blood  in  all  cases  in 
which  I  have  been  concerned.  In  the  case  of  the  wild  boar,  the 
poison  was  injected  into  the  chest.  A  third  of  a  grain  was  all 
that  was  used,  and  in  ten  minutes  the  symptoms  bigan  to  show 
themselves.  If  strychnia  is  administered  in  the  form  of  a  pill, 
it  might  be  mixed  with  other  ingredients  that  would  protract  the 
period  of  its  operation.  This  would  be  the  case  if  it  were  mixed 
with  resinous  materials,  or  materials  that  were  difficult  of  diges- 
tion, and  such  materials  would  be  within  the  knowledge  of  any 
medical  man,  and  they  are  frequently  used  for  the  purpose  of  mak- 
ing ordinary  pills.  Absorption  in  such  a  case  would  not  com- 
mence until  the  pill  was  broken  down  by  the  process  of  digestion. 
In  the  present  state  of  our  knowledge  of  the  subject,  I  do  not 
think  it  is  possible  to  fix  the  precise  time  when  the  operation  of 


b-12  MEDICAL   EVIDENCE. 

the  poison  commences  on  a  human  subject.  In  the  case  of  an 
animal  we  take  care  that  it  is  fasting,  and  we  mix  the  poison  with 
ingredients  that  are  readily  soluble,  and  every  circumstance  favor- 
able for  the  development  of  the  poison.  I  have  seen  many  cases 
of  tetanus  arising  from  wounds  and  other  causes.  The  general 
symptoms  of  the  disorder  very  nearly  resemble  each  other,  and 
in  all  the  natural  forms  of  tetanus  the  symptoms  begin  and  ad- 
vance much  more  slowly,  and  they  prove  fatal  much  more  slowly, 
and  there  is  no  intermission  in  certain  forms  of  natural  tetanus. 
In  tetanus  from  strychnia  there  are  short  intermissions. 

I  have  heard  the  evidence  of  what  took  place  at  the  Talbot 
Arms  on  the  Monday  and  Tuesday,  and  it  induces  me  to  come  to 
the  conclusion  that  the  symptoms  exhibited  by  the  deceased  were 
only  attributable  to  strychnia,  or  the  four  poisons  containing  it 
There  is  no  natural  disease  of  any  description  that  I  am  ac- 
quainted with  to  which  I  could  refer  these  symptoms.  In  cases 
-of  tetanus  consciousness  remains  to  the  very  last  moment.  When 
death  takes  place  in  a  human  subject  by  spasm,  it  tends  to  empty 
the  heart  of  blood.  When  death  is  the  consequence  of  the  adminis- 
tration of  strychnia,  if  the  quantity  is  small  I  should  not  expect  to 
find  any  trace  in  the  body  after  death.  If  there  was  an  excess  of 
quantity  more  than  was  required  to  cause  the  death  by  absorption, 
I  should  expect  to  find  that  excess  in  the  stomach.  The  color 
tests  for  the  detection  of  the  presence  of  strychnine  are  uncertain. 
Vegetable  poisons  are  more  difficult  of  detection  than  mineral 
ones,  and  there  is  one  poison  with  which  I  am  acquainted,  for 
which  no  known  test  has  been  discovered,  and  that  is  strychnia. 
The  stomach  of  the  deceased  was  sent  in  a  very  unsatisfactory 
state  for  examination,  and  there  must  have  been  a  considerable 
quantity  of  strychnine  in  the  stomach  to  have  enabled  any  one 
to  detect  its  presence  under  such  circumstances." 

The  examination  of  Dr.  Taylor  was  lengthy,  and  the  substance 
of  it  is  given  in  the  extract  we  make  from  his  book  on  this  sub- 
ject He  was  handled  roughly  in  the  cross-examination,  but 
sustained  himself  well. 


TESTIMONY    IN   THE   PALMER    CASE.  543 

This  Palmer  trial  being  the  leading  case  upon  strychnine 
poisoning,  and  being  the  one  that  has  awakened  courts  to  the 
dangers  of  this  form  of  poisoning,  we  give  an  abstract  of  the 
trial  as  we  find  it  in  the  work  of  Mr.  Taylor.  Being  an  import- 
ant witness  in  the  case,  he  has  given  an  interesting  account  of  it, 
which  will  be  found  in  the  next  chapter. 

This  case  should  be  thoroughly  studied,  by  the  medical  wit- 
ness, and  by  the  lawyer.  The  distinctive  features  characterising 
genuine  tetanus,  and  the  effect  of  strychnia  upon  the  system,  are 
nowhere  else  so  clearly  and  abl}r  set  forth.  The  medical  wit- 
nesses, many  of  them,  are  at  the  head  of  their  profession.  It 
will  be  referred  to  as  authority  in  all  cases  of  this  kind,  in  this 
country. 


CHAPTER  XXXVIII. 

LEADING  ADJUDICATED  CASES  IN  POISONING  BY  STRYCHNIA. 
REG.  v.  WILLIAM  PALMER,  Cent.  Crim.  Court ;  Taylor,  697. 

THE  prisoner  was  indicted  for  the  murder  of  his  friend.  John 
Parsons  Cook,  by  strychnia,  and,  after  a  lengthened  trial,  was 
found  guilty  of  the  crime.  Whether  we  view  the  social  position 
of  the  accused,  the  enormity  of  the  crime,  the  stealthy  and  artful 
manner  in  which  it  was  perpetrated,  and  the  unscrupulous  efforts 
made  by  some  professional  men  to  save  this  notorious  criminal 
from  the  sciffold,  this  case  surpasses  all  others  in  ancient  or 
modern  records.  The  deceased,  set.  28,  enjoyed  good  health,  had 
never  been  subject  to  fits  and  convulsions,  and  was  fond  of  out- 
door sports.  On  the  evening  of  the  14th  November,  1855,  while 
in  the  society  of  Palmer,  he  was  first  seized  with  a  violent  vomit- 
ing after  drinking  some  brandy  and  water.  From  this  illness  he 
recovered,  but  he  had  repeated  attacks  of  vomiting  after  taking 
various  articles  of  food,  until  his  death,  on  the  night  of  Novem- 
ber 20th.  During  this  time,  Palmer  was  daily  with  him,  and 
sent  him  broth,  which  caused  vomiting.  Some  of  this  broth 
had  been  privately  taken  by  a  servant  before  delivering  it  to 
deceased,  and  it  caused  her  to  vomit.  The  vomiting  continued 
more  or  less  daily  after  deceased  had  taken  various  articles  of 
food,  except  on  November  19th,  on  which  day  the  prisoner  was 
absent.  On  the  17th  November  an  aged  practitioner,  (Bamford) 
was  called  in  by  Palmer  to  attend  Cook.  On  the  18th,  Palmer 
wrote  to  a  medical  friend  of  deceased's  (Jones)  to  come  and  see 
him,  stating  what,  as  a  medical  man,  he  must  have  known  to  be 
untrue,  that  he  was  laboring  under  a  bilious  attack  combined  with 

(544) 


LEADING   ADJUDICATED   CASES    IN    POISONING    BY    STRYCHNIA.       545 

diarrhea.  Bamford  prescribed  two  pills  containing  calomel,  rhu- 
barb, and  half  a  grain  of  the  acetate  of  morphia,  to  be  taken  at 
night.  They  were  taken  by  deceased  on  the  nights  of  the  17th 
and  18th,  with  benefit.  On  the  night  of  the  19th,  at  about  half- 
past  ten  o'clock,  Palmer  gave  to  deceased  two  pills,  and  left  him. 
At  a  quarter  before  twelve,  the  deceased  was  heard  to  scream,  and 
he  was  then  seen  by  a  servant  sitting  up  in  the  bed  and  beating  the 
bed.  He  said  to  this  witness,  that  the  pills  which  had  been  given 
to  him  by  Palmer  had  caused  his  illness.  She  thus  described  his 
symptoms:  his  head  was  in  motion,  jerking  backward;  his  arms 
were  straightened  out,  and  his  legs  were  quite  stiff;  the  eyes 
were  starting;  the  he.id  was  drawn  back;  the  mouth  closed.  He 
could  speak,  and  he  said  he  should  die.  The  prisoner,  who  had 
been  sent  for  at  the  request  of  deceased,  gave  him  a  wine-glassful 
of  a  brown  liquid,  after  which  he  vomited,  and  asked  to  have  his 
hands  rubbed.  These  were  stiff,  cold  and  damp.  On  November 
20th  Palmer  was  with  him,  and  gave  him  coffee,  which  he  vomited. 
Jones  arrived,  and  saw  him  in  consultation  with  Bamford  and 
Palmer  in  the  evening;  he  was  then  going  .on  satisfactorily.  He 
refused  to  take  more  pills,  but  it  was  agreed  that  he  shotdd  have 
the  morphia  pills  that  night.  The  prisoner,  Palmer,  did  not 
inform  either  Jones  or  Bamford,  that  deceased  had  been  attacked 
with  tetanic  spasms  on  the  previous  night  after  having  taken 
pills,  and  that  he,  the  prisoner,  had  attended  him,  and  sat  with 
him  for  several  hours.  On  the  night  of  the  20th,  Palmer  called 
on  Bamford  for  the  pills:  on  the  previous  night  they  had  been 
sent  by  a  messenger.  Bamford  made  them  up  in  Palmer's  pres- 
ence, and  at  his  request  wrote  a  direction  on  the  box, "  nighkpills," 
and  delivered  them  to  Palmer,  who  took  them  with  him.  Bam- 
ford did  not  again  see  the  deceased  alive. 

About  a  quarter  past  eleven  on  this  night  (and  about  an  houi 
after  the  pills  had  been  delivered  to  him  by  Bamford,)  the  prisoner, 
Palmer,  gave  two  pills  to  deceased  in  the  presence  of  Jones,  call- 
ing Jones's  attention  to  Bamford's  handwriting  on  the  box. 
Palmer  then  left  the  house.  Deceased,  fearing  an  attack  like 
35 


546  MEDICAL   EVIDENCE. 

that  of  the  preceding  night,  requested  Jones  to  have  a  bed  made 
up,  so  that  he  might  sleep  in  the  room  with  him.  But  for  this 
circumstance,  on  which  the  prisoner  had  not  calculated,  it  is 
probable  that  deceased  would  have  been  found  dead  in  his  bed, 
and  no  accurate  history  of  the  symptoms  preceding  death  would 
have  been  made  known.  Three-quarters  of  an  hour  after  taking 
the  pills  deceased  appeared  comfortable,,  but  in  ten  minutes  more 
(fifty-five  minutes  after  taking  them)  Jones  was  suddenly  roused 
by  deceased,  who  was  sitting  up  in  bed,  said  he  was  going  to  be 
ill,  asked  his  friend  to  rub  his  neck,  and  to  send  for  Palmer. 
After  swallowing  two  other  pills  (said  to  contain  ammonia,)  which 
Palmer  had  brought  with  him,  deceased  fell  back  on  the  bed  in 
convulsions.  He  said  he  should  be  suffocated.  They  tried  to  raise 
him,  but  he  was  so  stiffened  out  with  spasms  that  it  was  impossible. 
He  then  said, "  Turn  me  over."  He  was  turned  on  his  side,  and  he 
died  in  a  few  minutes.  Jones  described  the  symptoms  as  those 
of  tetanus :  every  muscle  of  the  body  was  stiffened.  When  his 
neck  was  rubbed,  the  muscles  of  the  head  and  neck  were  found 
to  be  affected  with  violent  spasms;  his  head  was  thrown  back; 
his  hands  were  clenched ;  and  his  arms  were  in  a  state  of  rigidity. 
His  jaw  was  fixed  and  closed.  His  body  was  stretched  out,  and 
rested  on  the  head  and  heels  (opisthotonos.)  The  symptoms, 
therefore,  in  this  second  and  fatal  attack,  came  on  in  about  an 
hour  after  deceased  had  taken  the  suspected  [tills,  and  he  died  in 
from  sixteen  to  twenty  minutes  after  their  commencement. 

The  body  of  the  deceased  was  inspected  on  the  26th  Novem- 
ber, six  days  after  death ;  it  was  then  in  a  state  of  rigid  spasm, 
and  this  state  of  spasm  continued  in  the  limbs  for  more  than  two 
months  after  death,  i.  e.  when  the  body  was  exhumed  for  a  second 
inspection.  The  viscera  were  stated  to  be  universally  in  a  sound 
and  healthy  condition.  The  membranes  of  the  brain  were  a  little 
congested,  the  heart  was  empty,  and  the  blood  generally  dark 
and  fluid.  The  mucous  membrane  of  the  stomach,  as  well  as 
that  of  the  intestines,  was  partially  congested.  There  was  no 
appearance  of  any  disease  to  account  for  death 


LEADING    ADJUDICATED    CASES    IN    POISONING    BY    STRYCHNIA.       547 

The  stomach  and  intestines  were  delivered  in  a  jar  to  Dr. 
Rees  and  myself  for  analysis,  without  any  other  information  than 
that  it  was  suspected  the  deceased  might  have  died  from  poison. 
We  could  procure  no  history  of  the  symptoms  preceding  death. 
As  there  has  been  much  misrepresentation  regarding  the  con- 
dition of  the  articles  for  analysis,  I  here  give  parenthetically  the 
facts. 

Dr.  Rees  and  I  made  an  examination  of  the  coats  of  the 
stomach  and  of  the  coats  and  contents  of  the  bowels.  The  only 
poison  found  in  these  and  other  organs  was  antimony  in  traces, 
and  this  discovery  at  once  explained  the  cause  of  the  vomiting 
from  which  deceased  had  suffered  during  his  illness.  No  anti- 
mony had  been  prescribed  for  him  by  his  medical  attendant. 

As  there  were  no  contents  of  the  stomach  discoverable  in  the 
jar,  we  examined  the  coats  for  various  poisons, — among  others 
for  strychnia, — by  the  process  known  as  that  of  Merck,  and 
described  by  Fresenius.  We  preferred  this  process  for  its  sim- 
plicity, and  although  not  so  delicate  as  that  of  Stas,  yet  it  has 
this  advantage:  it  separates  strychnii  (if. present)  in  a  form  to 
leave  no  doubt  upon  the  mind.  It  was  this  process  which  was 
used  by  Dr.  Ogston  in  his  case,  and  by  Mr.  Morley  subsequently, 
in  the  case  of  Dove.  It  has  been  ignorantly  attacked  by  those 
who  for  a  time  had  a  personal  interest  in  attacking  it,  and  who 
would  have  equally  attacked  any  process  whatever  that  Dr.  Rees 
and  I  had  adopted.  We  found  no  bitter  taste  in  the  alcoholic 
extract,  and  no  satisfactory  indication  of  the  presence  of  strych- 
nia. The  charcoal  process  of  Graham  equally  failed  to  show  the 
presence  of  the  poison.  There  was  an  effect  produced  by  one  color 
test,  which  would  probably  have  satisfied  some  ardent  chemist  of 
the  undoubted  presence  of  strychnia.  We,  however,  declined  to 
risk  the  possible  conviction  of  a  man  for  murder  upon  so  slender 
a  piece  of  evidence  as  this.  When  we  were  at  length  furnished 
with  an  account  of  the  symptoms  under  which  deceased  had  died, 
we  did  not  hesitate  to  refer  death  to  strychnia,  in  spite  of  these 
equivocal  chemical  results :  and  this  opinion  was  subsequently 


548  MEDICAL    EVIDENCE. 

confirmed  at  the  trial  by  the  evidence  of  some  of  the  most 
eminent  pathologists  and  physiologists  of  the  day,  including 
Brodie,  Todd,  Christison,  Curling,  Solly,  and  others. 

It  may  be  sufficient  to  state  that  the  moral  evidence  against 
the  prisoner  was  of  the  strongest  possible  kind.  He  had  been 
associated  with  the  deceased  in  various  money  transactions  con- 
nected with  racing,  to  such  an  extent  that  the  death  of  the  de- 
ceased had  become,  at  that  time,  a  necessity  to  him,  in  order,  as 
he  thought,  to  extricate  himself  from  his  difficulties. 

The  Medical  Evidence  for  the  prosecution  was  to  the  effect 
that  viewing  the  symptoms  as  a  whole  in  the  two  attacks,  they 
were  unlike  any  known  form  of  disease,  and  admitted  of  no 
reasonable  explanation,  except  that  of  death  from  strychnia.  It 
was  proved  that  the  prisoner  had  secretly  possessed  himself  of 
three  grains  of  strychnia  on  the  night  of  the  19th  November, 
shortly  before  he  gave  to  deceased  the  pills  which  led  to  the  first 
attack,  and  that  on  the  20th,  the  day  of  deceased's  death,  he 
had  procured  six  grains  of  strychnia  at  a  druggist's  shop.  No 
reasonable  motive  could  be  suggested  for  his  procuring  nine 
grains  of  this  poison  from  two  different  sources  within  twenty- 
four  hours,  or  any  explanation  given  of  what  had  become  of  it. 
The  prisoner  had,  therefore,  the  motive,  the  means,  and  the  oppor- 
tunity, of  perpetrating  the  crime,  while  death  by  suicide  or  acci- 
dent was  wholly  inconsistent  with  the  facts. 

The  defense  turned  mainly  on  the  non-discovery  of  strychnia 
in  the  body.  The  criminal  tampering  with  the  stomach,  was 
conveniently  ignored :  and  it  was  assumed  that  no  difficulties  had 
been  placed  in  the  way  of  the  analysis.  With  this  assumption 
it  was  alleged  that  no  person  can  die  of  poison  unless  the  poison 
is  found  in  the  dead  body,  and  that  strychnia  being  susceptible 
of  detection  up  to  the  minutest  fractional  part  of  a  grain,  its 
absence,  under  a  proper  chemical  research,  was  a  proof  that 
deceased  could  not  have  died  from  its  effects.  To  support  this 
view,  the  counsel  for  the  defense  called  Mr.  Herapath  and  Dr. 
Letheby,  who  asserted  their  power  to  detect  strychnia  up  to  the 


LEADING    ADJUDICATED    CASES    IN    STRYCHNINE   POISONING.      549 

one  fifty-thousandth  part  of  a  grain  or  less !  But  while  these 
witnesses,  by  their  chemical  evidence,  were  thus  leading  the  jury 
to  believe  that  the  deceased  had  not  died  from  strychnia,  because 
it  was  not  found  in  the  coats  of  his  stomach  and  intestines, 
they  each  had  a  mental  reservation  to  the  effect,  that  the  i  o;> 
detec!ion  was  not  really  owing  to  the  absence  of  the  po'son,  but 
to  the  alleged  imperfect  process  pursued  by  the  crown  witnesses 
for  its  separation!  Mr.  Herapath  had,  indeed,  expressed  this 
opinion  openly  on  various  occasions  before  the  trial,  and  Dr. 
Letheby  subsequently  published  his  views  to  the  same  elfect.  If 
the -'e  witnesses  had  only  candidly  stated  this  at  the  trial,  it  would 
have  saved  the  court  and  jury  much  time,  and  science  much 
scandal ;  for  they  appeared  to  differ  from  the  crown  witnesses  on 
the  main  fict,  namely,  the  cause  of  death,  when  the  difference  in 
reality  was  as  to  the  relative  value  of  their  own  and  other  pro- 
cesses for  the  detection  of  strychnia, — a  point  which  a  jury  could 
not  decide,  and  which  was  quite  unimportant  to  the  issue. 

The  state  in  which  the  stomach  was  delivered  for  analysis 
would  to  most  scientific  persons  have  alone  sufficed  to  account  for 
the  failure  of  the  chemical  evidence ;  but  it  was  impossible  to 
look  for  any  charitable  consideration  from  men  who  were  bent  on 
making  a  trial  for  murder  a  scene  of  personal  contention  and 
rivalry.  Had  even  the  stomach  and  its  contents  been  delivered 
to  us  in  an  entire  state,  and  the  poison  not  found,  the  medical 
dogma  on  which  the  defense  was  based  is  utterly  lalse.  In  nearly 
every  chapter  on  every  poison  in  this  volume,  the  reader  will 
find  that  chemistry  has  in  some  cases  completely  failed  to  reveal 
the  presence  of  poison,  while  in  others  it  has  misled  an  "  expert " 
to  swear  to  the  presence  of  poison  in  a  definite  quantity  in  a 
dead  body  when  the  whole  was  a  fiction  of  the  imagination. 

The  evidence  for  the  defense  had  this  bearing.  If  strychnia 
had  been  found  in  the  stomach  the  death  of  the  deceased  would 
have  been  at  once  explained ;  hence  the  symptoms  taken  as  a 
whole  were  certainly  not  inconsistent  with  poisoning.  This  in 
fact  was  admitted  by  more  than  one  witness  for  the  defense.  It 


550  MEDICAL   EVIDENCE. 

was  suggested  that  the  symptoms  were  too  long  a  time  in  appear- 
ing, to  have  been  dependent  on  the  pills, — a  suggestion  utterly 
at  variance  with  fiicts, — also  that  the  deceased  if  suffering  from 
the  effects  of  strychnia  poisoning  could  not  have  borne  to  be 
rubbed,  and  that  the  cavities  of  the  heart  after  death  would  not 
have  been  found  empty.  These  statements  are  all  contrary  to 
fact.  In  short,  no  natural  form  of  disease  could  explain  the 
symptoms  or  death  of  Cook;  and  when  closely  examined,  there 
was  not  a  single  incident  in  the  case  which  was  not  reconcilable 
with  death  from  strychnia.  The  possession  of  the  poison,  and 
the  moral  circumstances  were  conclusive  of  the  guilt  of  the 
prisoner,  while  the  only  point  that  might  have  created  doubt, — 
the  non-discovery  of  poison, — admits  of  explanation  either  on 
the  theory  of  the  prosecution  or  on  that  of  the  defense. 

On  the  theory  of  the  chemical  witness  for  the  defense,  a  suf- 
ficient'y  delicate  chemical  process  had  not  been  pursued,  while  on 
the  theory  of  those  for  the  prosecution,  the  criminal  Palmer  and 
his  friend  Newton  had  either  ignorantly  or  designedly  destroyed 
the  stomach  and  its  contents,  so  as  to  render  the  detection  of  a 
small  residuary  quantity  of  this  poison  impossible.  But  the 
view  of  the  witnesses  for  the  defense,  when  taken  with  the  Medi- 
cal Evidence,  fully  justified  the  verdict  of  the  jury.  A  criminal 
is  not  to  be  acquitted  upon  the  assumption  that  a  more  delicate 
chemical  process  might  have  been  adopted  by  the  crown  witnesses 
for  the  detection  of  poison  in  a  dead  body ;  for  there  is  not  a 
criminal  case  in  which  an  unscrupulous  solicitor  might  not  pro- 
cure this  kind  of  evidence  of  opinion  in  favor  of  the  most  accom- 
plished professional  poisoner.  There  are  various  methods  of 
arriving  at  the  same  chemical  result,  and  every  analyst  thinks 
his  own  process  the  best.  In  fact,  the  chemical  witnesses  for 
the  defense  differed  among  themselves  as  to  the  best  process  for 
extracting  strychnia;  and  they  only  agreed,  pro  hdc  vice,  in  con- 
demning that  which  was  adopted  by  the  crown  witnesses !  The 
jury  meanwhile  decided  the  case  on  the  common-sense  principle, 
that  evidence  based  on  the  50,000th  of  a  grain  of  something 


LEADING    ADJUDICATED    CASES    IN    STRYCHNINE   POISONING.       551 

said  to  be  strychnia  by  one  or  two  chemists,  could  not  materially 
add  to  the  value  of  the  evidence  from  symptoms.  Either  the 
symptoms  were  safe  for  their  guidance  without  this  refined  arith- 
metical addition,  or  they  were  not.  If  they  were  not  safe  with- 
out it,  they  could  hardly  have  acquired  safety  with  it,  especially 
when  it  is  considered  that  the  most  confident  of  chemical  wit- 
nesses are  liable  to  bo  deceived  by  the  results  of  their  tests. 

That  the  prisoner  was  guilty  of  the  foul  crime  of  murdering 
his  friend,  no  one  who  views  the  whole  case  apart  from  prejudice 
can  entertain  a  reasonable  doubt.  A  distinguished  German 
writer  who  has  commented  on  this  trial,  expresses  his  astonish- 
ment that  any  professional  jnen  could  be  found  in  England  who 
could  stand  forward  and  publicly  state  on  oath  that  the  symp- 
toms under  which  Cook  died  might  be  explained  by  any  form 
of  nervous  disease,  epilepsy,  or  angina  pectoris.  It  argues  but 
little  for  the  knowledge  or  moral  feelings  of  medical  witnesses, 
and  must  shake  the  confidence  of  the  public,  as  it  has  already 
done  to  a  great  extent  in  the  trustworthiness  of  medical  opinions. 
Such  must  be  the  result  when  scientific  witnesses  accept  briefs 
for  a  defense ;  when  they  go  into  a  witness-box,  believing  one 
thing,  and  endeavoring  to  lead  a  jury  by  their  testimony  to 
believe  another, — when  they  make  themselves  advocates  and 
deal  in  scientific  subtleties,  instead  of  keeping  to  the  plain  truth. 
Such  men  should  be  marked  by  the  public,  and  their  efforts  at 
endeavoring  to  confer  impunity  on  the  foulest  crimes,  and  to 
procure  the  acquittal  of  the  most  atrocious  criminals  should  be 
duly  noted.  The  chemical  defenders  of  the  culprit  Tawell  on 
the  "  apple-pip  "  theory,  were  in  the  foremost  rank  to  defend  the 
culprit  Palmer !  Fortunately  for  society,  their  efforts  did  not 
prove  successful  in  either  case.  In  the  meantime  this  pernicious 
system  is  a  heavy  blow  and  a  great  discouragement  to  the  detec- 
tion and  exposure  of  murder  by  secret  poisoning.  No  man  in 
this  country  can  henceforth  venture  to  denounce  a  grave  crime 
of  this  kind  committed  by  a  person  of  wealth  or  social  position, 
without  being  prepared  to  incur  the  most  calumnious  attacks, 


552  MEDICAL   EVIDENCE. 

and  to  have  his  opinions  and  motives  grossly  misrepresented.  If, 
after  due  consideration,  he  boldly  expresses  his  opinion  at  an 
inquest  and  persists  in  it,  he  is  said  to  be  prejudiced  ;  if  he  hesi- 
tates or  expresses  himself  timidly,  he  is  not  to  be  trusted! 
There  is  but  little  protection  afforded  to  a  witness  by  a  court  of 
law ;  the  accused  person  is  there  the  sole  object  of  sympathy 
and  consideration,  and  a  learned  counsel  is  only  mildly  rebuked 
who,  against  the  whole  bearing  of  the  scientific  evidence,  asserts 
that  the  prisoner  is  innocent,  and  asks  the  jury  to  adopt  his 
venal  assertion  in  preference  to  the  unbiassed  opinions  of  medi- 
cal men. 

REX  v.  DOVE,  York  Summer  Assizes ;  Taylor  on  Poisons,  703. 

This  case  presents  many  features  of  interest.  The  prisoner 
was  charged  with  the  murder  of  his  \viib,  by  administering  to  her 
strychnia.  About  six  days  before  her  death,  after  having  break- 
fasted with  the  prisoner,  the  deceased  was  suddenly  seized  with 
loss  of  power  in  the  legs,  general  stiffness,  twitchiugs  and  cramps 
of  the  muscles.  These  symptoms  occurred  with  greater  or  less 
severity  during  the  week,  and  each  attack  followed  soon  after  the 
prisoner  had  administered  medicine  to  her.  She  had  five  or  more 
similar  attacks  in  the  six  days,  but  from  these  she  recovered. 
They  were  set  down  to  hysteria  by  the  medical  attendant,  and 
were  treated  accordingly.  On  the  evening  of  her  death  the 
prisoner,  while  partially  intoxicated,  gave  to  her  some  medicine 
as  usual  (in  a  liquid  form.)  She  complained  of  its  being  hot  and 
very  bitter.  In  less  than  half  an  hour  she  had  another  attack, 
and  after  a  succession  of  fits  she  died  in  two  hours,  under  all  the 
usual  symptoms  of  tetanus  from  strychnia.  It  seems  that  in 
every  attack,  excepting  the  last,  she  had  asked  to  be  rubbed ; 
the  rubbing  seemed  to  relieve  her,  and  on  this  occasion  when  she 
felt  the  spasm  coming  on  she  asked  one  of  her  attendants  to 
take  hold  of  her  hand.  The  appearances  in  the  body  corrobo- 
rated the  medical  inference,  that  death  had  taken  place  from 
strychnia,  a  view  supported  by  Dr.  Christison,  Mr.  Hey,  Mr. 


LEADING   ADJUDICATED    CASES    IN    POISONING    BY    STRYCHNIA.       553 

Mode}',  and  others.  Mr.  Morley  carefully  removed  the  stomach 
and  contents,  and  in  the  latter  he  found  enough  strychnia  not 
only  to  give  the  chemical  results  with  all  the  tests,  but  to  poison 
several  animals.  Traces  were  also  found  in  the  contents  of  the 
intestines.  For  some  unexplained  reason,  the  tissues  were  not 
examined  for  absorbed  strychnia.  Considering  that  at  this  time 
accurate  scientific  information  was  required  on  this  point,  the 
omission  was  a  serious  one,  and  equally  damaging  to  the  cause 
of  justice  as  well  as  the  interests  of  science.  If  there  be  any 
truth  in  the  doctrine  of  the  deposition  and  retention  of  strychnia 
in  the  organs,  this  woman's  body  must  have  been  saturated  with 
the  poison. 

In  the  defense  it  was  not  denied  that  death  had  taken  place 
from  strychnia.  It  was  proved  and  admitted  that  the  accused  had 
procured  at  different  times,  recently  before  the  deceased's  death, 
ten  grains  and  five  grains  of  strychnia.  The  former  quantity 
had  been  used  by  him,  at  least  in  part,  to  poison  cats  and  mice; 
the  latter  quantity  was  probably  that  which,  in  divided  doses, 
had  led  to  the  death  of  his  wife.  A  defense  of  insanity  was  set 
up,  but  this  utterly  failed,  as  a  criminal  motive,  means,  and 
opportunity  were  apparent;  and  with  a  full  knowledge  of  the 
effects  of  the  poison,  there  was  evidence  of  conversation  on  the 
part  of  the  prisoner  regarding  the  power  of  detecting  the  poison 
in  the  body.  The  only  strong  point  of  the  defense  turned  upon 
the  non-analysis  of  the  tissues.  The  slighter  attacks  of  spasms 
up  to  the  Saturday  were  assigned  to  hysteria ;  they  had  been 
treated  as  such  by  the  medical  attendants ;  if  due  to  strychnia 
administered  in  divided  doses  over  a  week,  the  poison  would  have 
been  found  in  the  tissues,  and  should  have  been  sought  for  there. 
The  fatal  illness  and  death,  as  well  as  the  appearances  in  the 
body,  and  the  discovery  of  strychnia  in  the  contents  of  the 
stomach  and  bowels,  were,  it  was  contended,  reconcilable  with  the 
hypothesis  of  one  accidental  administration  of  the  poison  in  the 
medicine  or  food  on  Saturday  night.  The  supposition  of  accident 
was  however  inconsistent  with  the  conduct  of  the  prisoner,  and 


554  MEDICAL   EVIDENCE. 

he  was  properly  convicted  and  executed.  Nevertheless  it  is  a 
matter  to  be  regretted  that  the  alleged  frequency  of  administra- 
tion was  not  supported  by  the  detection  of  strychnia  in  the  blood 
and  tissues,  especially  as  one  of  the  analysts  (Mr.  Nunneley) 
had  volunteered  his  opinion  at  the  trial  of  Palmer  three  months 
previously  that  it  might  be  there  detected !  But  considering 
*he  kind  of  defense  set  up  in  Palmer's  case,  and  supported  by 
Mr.  Nunneley,  the  omission  was  judicious.  The  result  might 
have  at  once  falsified  some  of  the  loose  assertions  made  at  this 
trial. 


CHAPTER    XXXIX. 

INFANTICIDE. 

MEDICAL  testimony  is  constantly  called  for,  in  questions  of 
Infanticide.  By  this  term  is  designated  those  cases  where  there 
is  a  question  whether  the  child  was  born  alive,  and  its  life  after- 
ward criminally  terminated. 

In  these  cases,  the  first  important  point  after  the  pregnancy  is 
established,  is  to  determine  whether  the  child  was  born  alive. 
Infanticide  may  be  committed  upon  an  unborn  live  child.  But 
if  the  child  was  dead  when  born,  and  no  evidence  exists  of  its 
having  suffered  in  utero,  that  ends  the  case.  Hence  the  great 
importance  of  determining  accurately,  whether  the  child  lived 
after  being  born.  This  is  often  attended  with  much  difficulty, 
and  calls  into  the  requisition  the  highest  scientific  knowledge. 

How  does  a  still-born  child  differ  from  one  born  alive  during 
the  first  few  hours  of  its  life  ?  1.  The  lungs,  thorax  and  trachea, 
show  no  signs  of  having  been  inflated,  and  lie  in  the  posterior 
part  of  the  thorax,  surrounded  with  a  fluid  of  glutinous  charac- 
ter. 2.  Owing  to  the  hurry  of  concealment,  when  a  child  has 
actually  been  born  dead,  in  those  cases  when  there  is  an  object 
in  concealing  the  death,  the  child  is  found  still  covered  with  the 
vermx  caseosa,  or  sebacious  secretion.  The  hair  is  closely 
agglutinated.  The  eyes  are  closed,  and  the  eyelids,  when  raised, 
immediately  shut. 

If  the  child  has  breathed,  the  lungs  occupy  a  larger  space  in  the 
thorax  than  in  the  still-born.  The  cavity  is  generally  completely 
filled,  and  the  lungs  partly  cover  and  conceal  the  pericardium. 
They  feel  tough  and  doughy,  and  retain  the  impression  of  the 
finger  slightly.  They  crepitate  when  pressed  or  cut,  and  when 

(555) 


556  MEDICAL   EVIDENCE. 

cut  yield  blood  in  small  quantities,  and  of  a  frothy  appearance. 
When  pressed  between  the  fingers  under  water,  air  bubbles  rise 
from  them.  The  diaphragm  is  lower  than  in  the  still-born.  They 
are  heavier  than  the  foetal  lungs,  though  lighter  than  water.  The 
desiccation  of  the  cord  is  supposed  by  Billard,  and  obstetricians 
generally,  to  be  an  act  of  vitality,  and  therefore  can  not  occur 
in  the  still-born  child.  This  has  been  called  in  question,  how- 
ever, by  Elsasser  and  others,  who  claim  to  have  seen  the  phe- 
nomen  in  the  case  of  the  still-born.  This  process  begins  at 
the  severed  end,  and  in  the  course  of  twenty-four  hours  after 
birth,  reaches  to  within  half  an  inch  of  the  navel.  The  wither- 
ing and  desiccation  of  the  cord  gives  a  fair  presumption  that  the 
child  was  born  alive  and  lived  some  time,  and  as  the  process  is 
a  gradual  one,  its  extent  will  indicate  tolerably  correctly  the 
length  of  time  the  child  has  survived.  The  eyes  remain  half 
open  if  the  child  has  been  alive,  and  resist  all  efforts  to  close 
them.  The  hair  is  usually  dry  and  clean,  and  the  ears  stand  out 
from  the  head  more  than  in  the  still-born.  The  vernix  caseosa  is 
only  found  under  the  armpits  and  behind  the  ears;  and  then 
only  when  the  birth  has  been  recent.  In  other  respects  mostly, 
the  child  born  alive  does  not  differ  externally  from  the  still-born, 
and  if  there  has  been  but  feeble  life  and  respiration,  the  appear- 
ance is  not  particularly  different  from  what  it  is  in  the  strong 
and  healthy.  It  must  be  admitted  that  the  test  arising  from  the 
condition  of  the  lungs  is  somewhat  shaken,  from  the  fact  that 
there  may  be  vaginal  or  even  uterine  respiration,  if  the  testimony 
of  credible  and  intelligent  medical  men  is  to  be  taken.  It  is, 
however,  so  rare, — many  obstetricians  whose  practice  has  been 
the  most  extended,  not  having  met  a  case  of  the  kind, — it  hardly 
forms  an  exception  to  the  general  rule,  that  when  air  has  passed 
into  the  lungs  the  child  was  born  alive. 

What  are  the  proofs  of  air  having  filled  the  lungs?  The 
question  is  important,  as  this  condition  is  claimed  to  be  the  most 
important  and  decided  test,  of  a  live  birth,  within  the  knowledge 
.of  medical  men.  There  are  no  tests  that  certainly  determine  the 


INFANTICIDE.  557 

fact  that  the  child  breathed  after  birth.  There  may  also  be  life 
without  respiration.  So  this  condition  may  not  exist,  and  still  the 
child  may  have  been  killed  after  birth.  In  a  case  of  this  kind, 
all  the  medical  expert  could  do  would  be  negative.  He  could 
only  determine  that  the  child  had  not  breathed,  leaving  the  ques- 
tion of  the  existence  of  life  to  be  established  by  other  testimony. 
Dr.  Schriyer,  of  Zeitz,  first  applied  what  is  called  the  hydro- 
static test,  to  the  solution  of  this  question.  It  depends  upon  the 
difference  of  specific  gravity  between  the  lung  of  a  child  that  has 
breathed,  and  one  that  has  not.  It  is  said  that  the  lung  of  the 
former  will  swim,  while  that  of  the  latter  will  sink.  If  they  float, 
the  reasoning  is,  air  has  entered  the  part,  and  the  higher  they  float 
the  more  perfect  has  been  the  respiration.  Porous  lung,  or  that 
part  fullest  of  air-cells,  should  be  used  in  this  test.  Then  the  test 
is  far  from  being  satisfactory,  though  the  most  so,  perhaps,  of 
any.  A  portion  of  the  lung  from  an  unborn  child  may  swim, 
and  a  piece  from  one  born  alive  may  sink,  for  various  reasons 
known  to  the  pathologist  and  physiologist.  The  temperature  of 
the  water,  too,  is  an  important  element  in  the  investigation.  In 
a  case  of  alleged  child  murder  recently  tried  in  Pennsylvania,, 
the  State  undertook  to  establish  the  fact  that  the  child  had  been 
born  alive,  by  evidence  of  an  examination  of  the  lungs  by  the 
hydrostatic  test,  physicians  giving  it  as  their  opinion  that  the 
child  had  lived,  because  the  lungs  floated  in  water,  in  whole  or  in 
part.  The  physician,  having  neglected  to  regulate  strictly  the 
temperature  of  the  water  in  which  the  lungs  had  been  tested,  it 
was  taken  advantage  of  by  the  counsel  for  the  defense,  who  by 
a  very  ingenious  and  delicate  experiment  demonstrated  to  the 
jury  that  there  was  no  reliance  to  be  placed  on  the  hydrostatic 
test,  unless  the  temperature  of  the  water  had  been  carefully  ascer- 
tained. He  put  a  small  vial  of  shot,  just  heavy  enough  to  float 
in  water  of  a  medium  temperament,  into  warm  water,  and  it 
sank ;  on  putting  it  into  cold  water  the  vial  floated.1  Then  the 

1  Wharton's  Criminal  Law,  sec.  874  ;  W.  &  S.  Med.  Jur.  280. 


658  MEDICAL    EVIDENCE. 

air  which  gives  buoyancy  to  the  lungs  may  have  been  intro- 
duced otherwise  than  by  natural  respiration.  The  sources  from 
which  the  air  may  have  been  derived  are  putrefaction,  emphysema, 
and  artificial  inflation  after  death,  and  this  artificial  inflation,  can- 
not be  distinguished  from  that  of  imperfect  respiration.  Though 
the  child  lived  and  breathed,  the  lung  used  in  the  water  test  may 
still  sink  from  disease  of  any  kind  that  increases  the  density  of 
the  part. 

Hence  the  medical  witness  is  unable  to  say  positively,  when 
the  lung  sinks,  that  the  child  has  not  lived,  or  when  it  swims, 
that  it  was  born  alive.  The  weight  of  authority  now  is,  that  in 
cases  of  alleged  Infanticide  it  must  be  clearly  shown,  not  only 
that  the  child  breathed  at  birth, — this  is  not  enough, — but  that 
the  child  had  acquired  an  independent  circulation  and  existence. 
This  proof  of  an  existence,  contrary  to  the  ordinary  presumption 
of  law,  has  been  extended  by  Judge  Story  to  a  child  several 
months  old,  whom  the  mother,  during  an  attack  of  puerperal 
fever,  had  thrown  out  of  the  window  of  a  steamboat.  This  decis- 
ion of  Judge  Story  had  been  criticised  by  Judge  Gibson,  in  a 
leading  Pennsylvania  case.1  While  these  difficulties  attend  the 
questions  connected  with  the  condition  of  the  lungs,  the  medical 
witness  has  discharged  his  duty  when  he  has  stated  what  is 
settled  upon  the  question,  and  that  is  but  little. 

The  question  as  to  what  caused  the  death  of  the  child, — 
whether  it  was  criminal  or  accidental, — either  before  or  after  birth, 
is  often  solved  only  by  the  medical  witness. 

Death  sometimes  results  from  the  compression  of  the  cord  dur- 
ing parturition,  and  leaves  marks  similar  to  that  of  strangulation 
by  other  causes.  Ecchymosis  may  possibly  occur  from  tightness 
of  the  umbilical  cord,  though  this  is  not  likely  ;  but  Taylor  says, 
if  this  condition  is  attended  with  abrasion  of  the  skin  it  could 
not  have  been  produced  by  the  cord.  Protracted  delivery 


1  Whart  Grim.  Law,  sec.  748  ;  R.  v.  Poulton,  5  Car.  &  P.  399  ;  Commonwealth 
•v.  Harman,  4  Barr.  272. 


INFANTICIDE.  659 

often  produces  death,  or  the  child  may  die  from  mere  debility. 
Hemorrhage  from  the  umbilical  cord  sometimes  is  the  cause  of 
death.  Fractures  of  the  skull  of  new-born  infants  does  not 
necessarily  imply  criminality.  The  skull  of  the  unborn  infant 
may  be  fractured  from  a  violent  blow  received  on  the  abdomen  of 
the  mother.  It  may  occur  during  labor  from  the  force  of  the 
pains,  the  condition  of  the  passage  favoring  it.  The  appearance 
of  the  wound  and  fracture,  in  these  cases,  as  in  others,  may  de- 
termine whether  an  instrument  has  been  used  to  effect  it.  Some- 
times defective  ossification  of  the  bones  of  the  head  are  mistaken 
for  a  fracture.  The  cautious  witness,  however,  will  not  make  the 
mistake-.  The  mother  is  sometimes  delivered  in  such  a  position, 
and  without  help,  that  the  child  falls  some  distance,  and  is  thereby 
killed.  The  possibility  of  this  accident  is  always  to  be  remem- 
bered by  the  medical  witness. 

The  accidental  causes  that  may  produce  death  after  birth  are, 
of  course,  numerous.  Exposure,  suffocation,  strangulation,  drown- 
ing, poisoning,  etc. 

These  are  the  main  points  of  medical  testimony  in  cases  of 
alleged  Infanticide,  stripped  of  rare  and  singular  cases,  and  theo- 
retical discussion. 

ENGLISH  ADJUDICATED  CASES. 
REX  v.  POULTON,  5  Carr.  &  Payne,  377. 

In  this  case,  Anne  Poulton,  the  defendant,  being  charged  with 
having  murdered  her  child,  the  medical  witnesses  testified  as  fol- 
lows :  one  said :  "  It  frequently  happens  that  a  child  is  born,  a^ 
far  as  the  head  is  concerned,  and  breathes,  but  death  takes  place 
before  the  delivery  is  complete.  My  opinion  in  this  case  is,  that  the 
-child  had  breathed ;  but  I  can  not  take  upon  myself  to  say  that 
it  was  wholly  born  alive."  Another  said  that  death  might  have 
occurred  when  the  child  was  partly  born,  if  no  medical  man  was 
present  to  assist  in  the  delivery.  The  third  said  :  "  It  is  impos- 
sible to  say  when  the  child  respired ;  but  there  is  no  doubt,  from 


580  MEDICAL   EVIDENCE. 

the  state  of  the  lungs  when  they  were   examined,  that  it  had 
breathed  ;  children  may  breathe  during  the  birth/' 

Mr.  Justice  Littledale  said  to  the  jury:  "The  material  ques- 
tion for  you  will  be,  was  the  child  born  alive.  For,  if  it  was  not, 
the  prisoner  can  not  be  convicted  of  the  murder.  But  it'  you 
think  there  is  sufficient  evidence  that  the  child  was  born  alive, 
then  you  will  inquire  if  the  prisoner  was  the  cause  of  its  death ; 
and  if  you  think  she  was,  you  will  find  her  guilty  of  the  murder. 
But  if,  in  your  opinion,  either  the  child  was  not  born  alive  or  that 
the  prisoner  was  not  the  cause  of  its  death,  then  she  may  be 
found  guilty  of  concealing  the  birth,  if  you  think  that  fact  is 
made  out.  With  respect  to  the  birth,  the  being  born  must  mean 
that  the  whole  body  is  brought  into  the  world;  and  it  is  not 
sufficient  that  the  child  respires  in  the  progress  of  the  birth. 
Whether  the  child  was  bora  alive  or  not,  depends  mainly  upon 
the  evidence  of  medical  men.  None  of  them  say  the  child  was 
born  alive ;  they  only  say  it  had  breathed ;  and  if  there  is  ali 
this  uncertainty  among  the  medical  men,  perhaps  you  would 
think  it  too  much  for  you  to  say  that  you  are  satisfied  that  the 
child  was  born  alive."  The  jury  said  they  thought  the  child  was. 
not  born  alive. 


CHAPTER  XL. 

EFFECT  OF  WOUNDS  IN  PRODUCING  DEATH. 

THE  surgeon  who  undertakes  to  dress  or  treat  a  case  of  crimi- 
nal wounding  may  be  certain  that  he  will  be  called  as  a  witness, 
— as  a  medical  expert,  and  that  his  own  treatment  will  undergo 
a  rigid  scrutiny.  He  assumes,  therefore,  more  than  ordinary 
responsibility.  If  his  treatment  is  in  the  least  out  of  the  usual 
course  in  either  direction, — whether  novel  or  negligent, — it  will 
be  urged  in  mitigation  of  the  crime.  From  the  fact  that  death 
may  follow  a  wound,  and  yet  not  be  the  cause  of  it,  the  utmost 
care  and  the  nicest  discrimination  should  be  made  by  the  attend- 
ing physician  or  surgeon;  two  lives  instead  of  one  may  depend 
upon  the  medical  treatment.  • 

The  rule  of  law  upon  this  subject  is,  that  if  a  man  give  another 
a  stroke  not  in  itself  so  mortal,  but  that  with  good  care  he  might 
be  cured,  yet  if  the  party  die  of  this  wound  within  the  year  and 
day,  it  is  murder,  or  other  species  of  homicide,  as  the  case  m-iy 
be ;  though  if  the  wound  or  hurt  be  not  mortal,  and  it  shall  be 
made  clearly  and  certainly  to  appear  that  the  death  of  the  party 
was  caused  by  the  ill  application  by  himself  or  those  about  him, 
of  bad  medical  or  surgical  treatment,  and  not  by  the  wound  or 
hurt,  it  seems  that  this  is  no  species  of  homicide.  But  when  a 
wound  not  in  itself  mortal,  for  want  of  proper  applications,  or 
from  neglect,  turns  to  a  gangrene  or  a  fever,  and  that  gangrene 
or  fever  is  the  immediate  cause  of  the  death  of  the  party  wound- 
ed, the  party  by  whom  the  wound  is  given  is  guilty  of  murder, 
or  manslaughter,  according  to  circumstances.  For  though  the 
fever  or  gangrene,  and  not  the  wound,  be  the  immediate  cause  of 

36  (561) 


50 2  MEDICAL   EVIDENCE. 

death,  yet  the  wound  being  the  cause  of  the  gangrene  or  fever, 
is  the  immediate  cause  of  death,  causa  caiisatl.1 

Thus,  it  was  resolved,  that  if  one  gives  wounds  to  another, 
who  neglects  the  care  of  them,  or  is  disorderly,  and  doth  not 
keep  that  rule  which  a  person  wounded  should  do,  yet  if  he  die, 
it  is  murder,  or  manslaughter,  according  to  the  circumstances, 
because  if  the  wounds  had  not  been,  the  man  had  not  died ;  and, 
therefore,  neglect  or  disorders  in  the  person  who  received  the 
wounds  shall  not  excuse  the  person  who  gave  them.5 

When  a  surgical  operation  is  performed  in  a  proper  manner, 
and  under  circumstances  which  render  it  necessary  in  the  opinion 
of  competent  surgeons,  upon  one  who  has  received  a  wound  ap- 
parently mortal,  and  such  operation  is  ineffectual  to  afford  relief 
and  save  the  life  of  the  patient,  'or  is  itself  the  immediate  cause 
of  death,  the  party  inflicting  the  wound  will,  nevertheless,  be 
responsible  for  the  consequences.3 

Nor  does  a  refusal  upon  the  part  of  the  injured  person  to  submit 
to  the  necessary  surgical  treatment  excuse  the  person  committing 
the  offense.  In  the  case  of  Holland,  who  was  indicted  for  murder, 
it  appeared  that  the  deceased  had  been  waylaid  and  assaulted  by 
the  prisoner,  and  that  amongst  other  wounds,  he  was  severely  cut 
across  one  of  his  fingers  by  an  iron  instrument.  The  surgeon 
urged  him  to  submit  to  amputation  of  the  finger,  teLing  him  that 
unless  it  was  amputated,  he  considered  that  his  life  would  be  in 
great  hazard.  The  deceased  refused  to  have  the  finger  ampu- 
tated. The  surgeon  dressed  it,  and  the  deceased  attended  from 
day  to  day  to  have  the  wound  dressed ;  at  the  end  of  a  fortnight, 
however,  lock-jaw  came  on,  induced  by  the  wound  on  the  finger; 
the  finger  was  then  amputated,  but  too  late,  and  the  lock-jaw 
ultimately  caused  death.  The  surgeon  deposed,  that  if  the  finger 


1 1  Russel  on  Crimes.  505  ;  1  Hale,  428. 
*  Rew's  case,  Kel.  26  ;  Roscoe's  Grim.  Ev.  704. 

3  Commonwealth  v.  Green,  1  Ashmead,  289  ;  The  Commonwealth  v.  McPike, 
3  Gush.  181. 


THE   EFFECTS    OF    WOUNDS    IN    PRODUCING   DEATH.  503 

had  been  amputated  at  first,  he  thought  it  most  probable  that  the 
life  of  the  deceased  would  have  been  preserved,  and  it  was  con- 
tended for  the  prisoner  that  the  cause  of  the  death  was  not  the 
wound  inflicted  by  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment.     Maule,  J.,  how- 
ever, was  clearly  of  the  opinion  that  this  was  no  defense,  and 
told  the  jury  that  if  the  prisoner  willfully,  and  without  any  justi- 
fiable cause,  inflicted  the  wound  on  the  party,  which  wound  was 
ultimate'y  the  cause  of  death,  the  prisoner  was  guilty  of  murder ; 
that  for  this  purpose  it  made  no  difference  whether  the  wound 
was  in  its  own  nature  instantly  mortal,  or  whether  it  became  the 
cause  of  death  by  reason  of  the  deceased  not  having  adopted  the 
best  mode  of  treatment;  the  real  question  was,  whether  in  the 
end  the  wound  inflicted  by  the  prisoner  was  the  cause  of  death.1 
Upon  an  indictment  for  manslaughter,  it  appeared  that  the 
prisoner  and  the  deceased  had  been   fighting,  and  the  deceased 
was  killed.     A  surgeon  stated  that  a  blow  on  the  stomach  in  the 
.st.-ite  in  which  the  deceased  was,  arising  from  passion  and  intoxi- 
cation, was  calculated  to  occasion  death,  but  not  so  if  the  party 
had  been  sober.     Hullock,  B.,  directed  an  acquittal,  observing, 
that  when  the  death  was  occasioned  partly  by  a  blow,  and  partly 
by  a  predisposing  cause,  it  was  impossible  to  apportion  the  oper- 
ations of  the  several  causes,  and  to  say  with  certainty  that  the 
death  was  immediately  occasioned  by  any  one  of  them  in  par- 
ticular.    It  may  be  doubted  how  far  the  ruling  of  the  learned 
judge  in  this  case  was  correct,  for  if  by  the  act  of  the  prisoner 
the  death  of  the  party  was  accelerated,  it  seems  that  the  prisoner 
would  be  guilty  of  the  felony.2     It  is  by  no  means  certain  that 
intoxication  was  the  cause  of  death ;  it  might  render  the  party 
more  liable  to  suffer  injury  from  the  blows,  but  this  could  no 
more  excuse  the  offender  than  the  infirmities  of  old  age.     Lord 
Hale  held  that  if  a  man  be  sick  of  some  disease,  which,  by  the 


1  Reg.  v.  Holland,  2  M.  &  Rob.  357. 

2  Roscoe's  Criminal  Ev.  703  ;  Martin's  case,  5  C.  &  P.  130. 


564  MEDICAL    EVIDENCE. 

course  of  nature  might  possibly  end  his  life  in  half  a  year,  and 
another  gives  him  a  wound  or  hurt  which  hastens  his  death,  by 
irritating  and  provoking  the  disease  to  operate  more  violently  or 
speedily,  this  is  murder,  or  rather  homicide,  according  to  circum- 
stances, in  the  party  by  whom  such  wound  or  hurt  was  given. 
For  the  person  wounded  does  not  die  simplex  visitation  Dei,  but 
his  death  is  hastened  by  the  hurt  which  he  received ;  and  it  shall 
not  be  permitted  to  the  offender  to  apportion  his  own  wrong.1 

Upon  an  indictment  for  manslaughter,  it  appeared  that  the 
death  was  caused  by  a  blow  on  the  back  of  the  neck,  and  that 
the  deceased  was  not  at  the  time  in  a  good  state  of  health,  and 
that  she  was  desired  t;>  remain  in  the  hospital,  where  the  best  of 
care  would  be  alibi  d,  d  her,  but  would  not.  Park,  B.,  said  :  "  It  is 
said  that  the  deceased  was  in  a  bad  state  of  health,  but  that  this 
is  perfectly  immaterial ;  as  if  the  prisoner  was  so  unfortunate  as 
to  accelerate  her  death,  he  must  answer  for  it.2  So  when  Mor- 
rison's pills  have  been  administered  to  a  patient  ill  of  the  small- 
pox, and  the  medical  witnesses  gave  it  as  their  opinion  that 
the  pills  must  have  aggravated  the  disease  under  which  the 
deceased  labored,  and  have  accelerated  his  death,  it  was  held  by 
Lord  Lyndhurst,  that  "It  is  true,  the  witnesses  do  not  say  whether 
the  deceased  would,  in. their  opinion,  have  died  of  the  small-pox 
if  the  pills  had  not  been  administered,  but  they  all  agree  in  this, 
that  his  death  was  accelerated  by  the  pills.  Now,  their  evidence, 
being  translated,  comes  to  this,  that  the  party  died  on  the  day 
when  he  did  die,  viz  :  on  the  27th  of  June,  by  reason  of  these 
pills.  At  present,  therefore,  it  appears  to  me  that  the  indictment 
was  good."  Where  death  has  been  accelerated  or  occasioned  by 
medicine  given  in  small-pox  under  the  circumstances,  it  was  held 
that  the  prisoner  was  liable. 

Mr.  Roscoe  says  very  few  decisions  are  to  be  found  in  our 
own  books  on  this  subject,  and  it  may  be  therefore  allowable  to 


1  1  Hale,  428. 

2  Kex  v.  Morton,  C.  &  P.  128. 


EFFECT    OF    WOUNDS    IN    PRODUCING    DEATH.  565 

illustrate  it  by  reference  to  a  few  cases  in  the  Scotch  law,  which  is 
in  principle  the  same  as  our  own  on  this  point,  and  to  the  text 
writers  on  the  criminal  law  of  the  country.  It  is  clear,  says  Mr. 
Alison,  that  if  the  death  be  owing,  not  to  the  effects  of  the  wound, 
but  to  a  supervening  accident  or  misfortune,  though  induced  by 
the  first  violence,  the  prisoner  can  not  be  convicted  of  homicide. 

When  the  prisoner  had  thrown  a  quantity  of  sulphuric  acid  in 
the  lace  of  the  deceased,  and  produced  inflammation  of  the  eyes, 
that  bleeding  was  deemed  necessary,  and  the  orifice  made  by  the 
surgeon  inflamed,  and  of  this  the  party  died,  but  not  of  the  injury 
of  the  face,  the  court  held  this  second  injury  produced  by  a  dif- 
ferent hand  not  so  connected  with  the  original  violence  as  to  sup- 
port the  charge  of  murder,  and  the  prisoner  was  convicted  of 
assault  only.1  When  a  physician  is  summoned  in  one  of  these 
cases,  he  is  very  apt  to  be  [tressed  for  a  positive  opinion  as  to  the 
•cause  of  death,  which  opinion  he  can  not  give  positive' y.  Though 
there  may  not  be  but  one  ultimate  cause  of  death,  there  may  be 
many  accelerating  or  auxiliary  causes,  and  the  medical  witness  is 
expected  to  give  to  each  its  relative  importance  and  place.  The 
determination  of  these  cases  rests  almost  wholly  on  medical  testi- 
mony. The  connection  between  the  act  of  the  prisoner  and  the 
death  of  the  deceased,  must  be  proved  by  the  opinions  of  persons 
of  professional  skid  and  experience. 

The  important  question  for  the  medical  witness  to  settle  for  the 
court  and  jury  is,  would  the  deceased  have  died  at  the  time  he 
did,  or  as  soon,  had  he  not  received  the  wound  ?  No  one,  of 
course,  can  determine  absolutely  what  wounds  are  necessarily 
mortal,  and  what  ones  are  not;  each  case,  therefore,  must  be 
judged  by  itself,  and  the  circumstances  surrounding  it.  It  is  too 
much  to  expect  that  a  medical  witness  wi.l  determine  certainly 
whether  a  wound  is  fatal  or  not.  In  many  cases  he  may  easily, 
and  surely  pronounce  a  certain  wound  f  ital,  from  the  parts  allect- 
ed,  but  there  are  so  many  aggravating  causes,  both  constitutional 

1  Macraillan's  case,  Alison's  Prim.  Cr.  L.  of  Scot.  147. 


5CG  MEDICAL   EVIDENCE. 

and  others,  that  a  very  simple  injury  may  prove  deadly.  The 
witness  must  be  on  his  guard  in  deciding  these  cases.  Taylor  has 
well  said,  "  that  a  witness  can  not  do  greater  mischief  to  his  own 
reputation  than  by  assigning  many  speculative  causes  for  death. 
The  court  will  at  once  infer,  that  he  is  ill-informed. in  his  pro- 
fession, or  that  he  has  taken  no  pains  to  estimate  in  his  own 
mind  what  was  the  real  cause,  previous  to  the  appearance  at  the 
trial.  By  preliminary  reflection  it  is  very  easy  for  medical  wit- 
nesses to  guard  against  the  common  occurrence  of  stating  one 
cause  of  death  to  the  counsel  lor  the  prosecution,  and  another  to 
the  counsel  for  the  prisoner." 

In  judging  of  the  effect  of  a  wound  in  predisposing  to,  or  in 
producing  death,  there  are  so  many  circumstances  to  be  taken 
into  the  account,  that  only  a  few,  comparatively,  can  be  here  re- 
ferred to. 

Wounds  of  the  head  are  more  difficult  to  determine,  in  their 
extent  and  effect,  than  in  any  other  part.  The  particular  part 
of  the  head  hurt — the  age — the  weapon  used — the  state  of  the 
system,  etc.,  all  tend  to  complicate  the  prognosis.  A  wound  of 
the  superficial  integuments,  though  simple,  may  inflame  and 
extend  to  the  brain  very  unexpectedly.  Erysipelas  may  inflame 
the  disease  suddenly,  and  produce  death.  Slight  wounds  of  the 
integuments,  by  producing  inflammation  of  the  bone  and  mem- 
branes, are  often  more  dangerous  than  extensive  injuries.  A  case 
is  reported,  where  a  soldier  got  drunk  on  the  line  of  march,  and  was 
placed  in  a  baggage  wagon,  out  of  which  he  fell,  his  head  corning 
right  in  the  track  of  the  wheel,  which  passed  obliquely  over  it,  strip- 
ping the  whole  of  the  integument  off  one  side  of  it,  and  leaving 
the  bone  completely  bare.  The  integuments  being  replaced  and 
secured  by  stitches,  and  the  whole  kept  in  situ,  by  means  of  ban- 
dages, he  travelled  for  four  davs  on  the  wagon,  when  he  was 

o      *  •> 

put  into  the  hospital,  and  in  less  than  a  fortnight  was  enabled  to 
resume  his  duty.  Even  a  complete  division  of  the  pericranium 
is  not  so  dangerous  as  a  wound  from  a  sharp  pointed  instrument. 
From  the  arch  shape  of  the  head,  the  real  injury  to  life  may  be 


EFFECT   OF   WOUNDS    IN   PRODUCING    DEATH.  567 

at  the  base,  though  the  force  was  applied  to  the  superior  part  of 
the  head.  Orfi.a  says,  there  is  more  danger  from  a  blow  when 
given  from  above  downward,  than  if  it  falls  laterally,  from  below 
upward,  and  Watson  agrees  with  him.  In  a  case  tried  in  Scot- 
land, in  1812,  quoted  by  Beck  from  Dunlap,  the  murder  was  per- 
petrated by  repeated  blows  on  the  top  of  the  head,  yet  the  fractures, 
four  in  number,  were  all  at  the  base  of  the  skull.  There  may  be 
no  fracture,  yet  the  concussion  may  produce  death :  there  may  or 
may  not  be  any  disorganization  or  change  in  the  structure  of  the 
brain  revealed  by  post  mortem  examination,  it  being  a  functional 
derangement,  affecting  the  vital  forces.1 

In  these  cases,  and  a  thousand  others,  all  the  medical  witness 
can  do,  is  to  explain  the  uncertainty  of  recovery  from  such  injuries, 
and  it  is  also  well  to  show,  under  what  extraordinary  circum- 
stances persons  will  survive,  with  all  their  faculties  unimpaired. 

The  French  surgeons  have  generally  agreed  upon  the  following 
four  aphorisms  of  Vicq  d'Azzr,  as  comprising  the  experience  of  the 
art  on  these  points:  1.  That  the  larger  wounds  of  the.  head  are 
not  always  the  most  dangerous.  2.  That  it  is  possible  to  lose  a 
considerable  quantity  of  the  brain  without  death  ensuing.  3. 
That  the  slightest  injuries  often  are  succeeded  by  fatal  conse- 
quences, and  that  hence  they  should,  in  no  case,  be  neglected. 
4.  That  a  contusion  of  the  bone  alone  may  gradually  extend  itself 
so  as  to  effect  the  brain. 

It  is  well  to  remember,  that  the  testimony  of  individuals  who 
have  been  hurt  by  injuries  upon  the  head,  is  not  very  reliable, 
because  of  the  disordered  state  of  the  intellect,  and  of  the  memory 
in  particular,  from  the  effect  of  the  injury.  This  kind  of  testi- 
mony should  always  be  corroborated. 

The  eye  being  so  intimately  connected  with  the  brain,  injuries 
of  it  are  more  dangerous  than  of  any  other  part  of  the  face  helow 
the  brain,  and  the  medical  witnesses'  opinion  as  to  the  effect  of  a 
wound  on  this  part  should  be  cautious.  This  is  also  true  of 

1  Cooper's  Lectures,  Vol.  1,  page  119. 


5G8  MEDICAL   EVIDENCE. 

wounds  of  the  neck.  If  the  par  v;igurn  or  the  spinal  marrow  is 
injured,  death  is  inevitable,  while  extensive  injuries  of  the  blood- 
vessels, larynx  and  trachea,  may  not  prove  iktal.  Dislocation  of 
the  neck  is  not  always  destructive  of  life  though  generally  so. 

Mr.  James  L.  Van  Gorder,  of  Warren,  Ohio,  several  years  ago 
partially  luxated  his  neck,  so  that  ever  since,  he  has  carried  his 
head  partially  on  one  side,  yet  he  still  lives  and  attends  to  busi- 
ness, though  suffering  constantly  great  pain. 

Dr.  Spencer,  of  Ticonderoga,  gives  a  case  where  the  dentatus 
was  luxated  completely,  yet  the  patient  lived  forty-eight  hours, 
with  complete  paralysis  below  the  head ;  he  retained  his  speech. 

Wounds  of  the  thorax,  in  general,  are  not  so  dangerous 
as  those  of  the  head  and  neck.  Injuries  to  the  lungs  are  attend- 
ed with  much  danger,  yet  one  may  be  shot  through,  as  in  the 
case  of  General  Shields,  while  in  Mexico,  and  not  prove  fatal, 
If  the  large  nerves  and  blood-vessels  are  uninjured,  an  extensive 
wound  may  possibly  heal.  If  the  pericardium  is  injured  it  is 
very  apt  to  extend  to  the  heart,  but  if  the  wound  does  not  reach 
the  heart,  and  does  reach  the  pericardium,  it  is  dangerous,  if  not 
absolutely  fatal. 

Injuries  to  the  heart  are  not  as  suddenly  fatal  as  is  generally 
supposed.  A  British  soldier  survived  for  thirteen  days  with  a 
musket  ball  in  his  heart.  In  a  case  tried  in  Glasgow,  in  1819, 
the  Medical  Evidence  showed  that  the  auricles  and  part  of  the 
aorta  next  the  heart,  were  destroyed  by  slugs  and  brass  nails, 
with  which  the  piece  was  charged,  and  in  that  case,  he  must  have 
dropped  down  dead  the  moment  he  received  the  shot.  But  the 
evidence  showed  the  body  to  have  been  found  some  distance 
from  the  door  where  the  prisoner  claimed  he  shot  him,  as  he  was 
entering  his  house  by  force,  as  a  stream  of  blood  was  found 
from  the  door  to  the  place  where  the  body  lay.  It  was  determined 
that  the  prisoner  did  not  run  out  into  the  street  and  shoot  the 
deceased,  but  that  the  deceased  did  run  from  the  house  to  the 
spot  where  he  lay,  though  shot  in  the  manner  described.  The 
prisoner  was  discharged.  Many  cases  are  reported  where  the 


EFFECT    OF    WOUNDS    IN   PRODUCING    DEATH.  569 

person  has  survived  an  injury  of  the  heart.  Beck  has  given  a 
large  list  of  cases.1  Wounds  on  the  aorta  and  vena  cava  must 
be  fatal,  so  of  the  lower  part  of  the  oesophagus. 

The  iatality  of  a  wound  of  the  abdomen,  like  that  of  the  chest, 
depends  altogether  upon  the  part  injured.  Wounds  of  the  stomach 
and  small  intestines  are  more  dangerous  than  of  the  large  intes- 
tines. Wounds  of  the  liver  are  generally  fatal,  certainly  so,  if 
the  gall-bladder  is  hurt.  One  great  danger  attending  wounds  of 
the  abdomen  is  from  extravasation  of  blood,  bile,  foecal  matter, 
«hyle,  or  urine  into  the  viscera,  causing  acute  inflammation. 

The  majority  of  wounds  of  the  extremities  are  not  dangerous, 
even  when  the  large  blood-vessels  are  ruptured,  for  modern  sur- 
gery has  triumphed  over  all  difficulties,  so  far  as  the  immediate 
etfect  is  involved. 

Gunshot  wounds  are  more  apt  to  be  attended  with  serious  re- 
sults, than  other  injuries. 

These  are  the  general  points  the  medical  man  is  to  consider, 
and  keep  in  view,  in  cases  of  wounds;  but  still,  it  must  not  be 
forgotten,  that  every  case  of  wounding,  like  every  disease  the 
physician  is  called  on  to  treat,  is  in  some  respects  different  from 
all  others,  and  must  be  judged  by  itself, — that  what  is  fatal  in  one 
constitution  may  be  comparatively  harmless  in  another, — that 
any  wound,  however  small,  may  possibly  produce  death. 

1  2  Beck  Mod.  Juris.  330— Note. 


CHAPTER   XL  I. 

RAPE— ADJUDICATED  CASES. 

RAPE,  in  law,  is  the  carnal  knowledge  of  a  woman  without,  or 
against  her  consent. 

Common  witnesses — the  party  herself — rather  than  medical 
experts,  usually  determine  cases  of  alleged  rape.  Questions  of  fact 
rather  than  of  opinion  decide  the  result.  Yet  the  medical  witness 
may  be  called  on  certain  points  to  which  we  may  properly  refer 
connected  with  this  subject.  The  evidence,  not  only  of  medical 
experts,  but  of  common  witnesses  in  detail,  is  given  in  works 
on  Medical  Jurisprudence,  leaving  much  confusion  in  the  mind 
of  the  medical  witness,  as  to  what  he  is  expected  to  testify 
to,  as  an  expert.  So  generally  treating  of  the  common  evi- 
dence connected  with  Medico-legal  questions,  by  Medico-legal 
writers,  is  to  be  deprecated.  The  evidence  of  the  witness  who 
testifies  only  to  facts,  is  not  based  upon  special  scientific  knowl- 
edge. The  medical  man  can  testify  to  facts  as  any  other  witness. 
It  seems  singular  that  writers  upon  Medical  Jurisprudence  will 
constantly  load  down  their  works  in  this  way,  with  outs'de  matter, 
which,  when  connected  with  the  great  amount  of  speculation,  and 
the  record  of  strange  and  extraordinary  cases,  renders  unintelli- 
gible and  obscure  the  proper  matter  of  the  treatise. 

The  external  signs  of  violence  on  the  parts  of  the  female  upon 
whom  the  rape  is  alleged  to  have  been  committed,  as  well  as  the 
gener.il  appearances  of  the  persons  and  circumstances  of  the 
case,  may  be  testified  to  by  any  intelligent  person.  When  the 
offense  is  committed  upon  a  child,  the  mother  or  some  female 
friend  is  usually  the  best  witness, — she  sees  and  examines  the 
parts  first.  The  ability  to  resist,  is  not  a  Medico-legal  question 

570 


RAPE — ADJUDICATED    CASES.  571 

in  a  healthy  person,  any  person  of  judgment  may   determine 
,  that  fact. 

The  questions  connected  with  the  hymen,  venereal  disease,  the 
use  of  chloroform  and  the  like,  must  be  solved  by  the  medical 
witness  alone. 

If  a  child  is  the  subject  of  an  alleged  rape,  and  gonorrhoea  is 
found  to  exist,  the  presumption  is,  that  it  was  produced  from 
sexual  intercourse,  and  not  otherwise : — though  it  may  possibly 
have  been  communicated  in  some  other  way ;  the  cases  however 
are  so  rare,  the  presumption  is  against  this  idea.  Unless  the  phy- 
sician is  on  the  look-out,  he  may  readily  mistake  leucorrhcea  lor 
gonorrhoea,  the  discharges  being  similar,  and  the  attending  symp- 
toms so  much  alike.  The  opinion,  therefore,  of  the  medical  wit- 
ness, should  be  well  considered  and  cautious  on  this  point.  The 
two  diseases  must  be  carefully  and  recently  studied,  and  com- 
pared, before  a  safe  opinion  c.tn  be  given. 

Gangrenous  inflammation  of  the  vulva  may  occur  naturally, 
although  rarely.  The  value  of  the  hymen,  as  indicating  rape,  is 
not  of  as  much  importance  as  was  once  supposed  ;  for  the  reasons, 
that  it  is  not  always  destroyed  by  the  first  connection,  and  it  may 
be  lost  from  other  causes  than  coition. 

The  most  reliable  medical  evidence  in  these  cases  is  undoubt- 
edly the  presence  of  seminal  stains  upon  the  clothing  of  the 
female.  There  is  no  doubt  but  that  the  skillful  and  enlightened 
microscopist,  will  detect  the  peculiar  characteristics  of  semen  in 
the  fresh  or  dried  specimen.  The  animalcules  will  be  seen.  The 
chemical  tests  of  semen  are  of  some  value.  Semen  is  alkaline 
and  glutinous,  and  slowly  soluble  in  water,  with  a  peculiar  and 
distinctive  odor. 

Rape,  in  a  legal  sense,  is  the  vio^nt  assault,  or  the  destroying 
of  resistance  by  artificial  means,  by  which  chastity  is  destroyed. 
The  agent  may  not  have  been  given  to  overcome  consciousness ; 
if  the  object  is  to  produce  sexual  excitement,  and  thereby  leading 
to  voluntary  submission,  it  is  equally  criminal.  If  any  agent  i^ 
given  by  which  reason  is  suspended,  and  while  that  condition 


672  MEDICAL   EVIDENCE. 

exists  the  person  is  violated,  it  is  rape.  Ignorance  of  the  nature 
of  the  act  on  the  part  of  the  female,  though  with  her  consent, , 
renders  the  act  rape.1  If  the  child  was  of  tender  years  she  can 
not  give  consent  in  law.2  If  connection  is  had  with  a  man 
through  fraud,  the  woman  mistaking  him  for  her  husband,  it  is 
rape  on  his  part.3  Consent  under  duress  or  fear  is  no  defense.4 
The  prior  and  present  character  of  the  complainant,  may  be 
shown  for  the  purpose  of  affecting  her  credibility,  but  not  as  a 
justification  for  the  act.  She  may  be  asked  whether  she  had  not 
had  previous  connection  with  other  men,  and  she  is  not  privileged 
from  answering.5  In  a  case  in  England,  the  following  question 
was  asked  the  prosecutrix :  "  whether  she  was  not,  on  the  Friday 
last,  walking  on  High-street  to  look  out  for  men,"  which  she 
denying,  a  witness  was  allowed  by  the  defense  to  contradict  her.6 
As  a  general  rule,  veracity  can  not  be  impeached  by  attacking 
chastity,  but  when  rape  is  the  issue  it  may  be. 

The  testimony  of  medical  men  may  therefore  be  required  as 
to  previous  venereal  disease,  delivery,  or  other  evidence  of  illicit 
intercourse  falling  within  his  peculiar  province. 

It  was  at  one  time  held  in  England,  that  to  constitute  rape, 
there  must  have  been  an  emission  within  the  parts  of  the  female. 
By  the  statute  of  that  country,  now  in  force,  emission  is  not 
essential.  It  has  always  been  held  that  the  entrance  of  the 
private  parts  of  the  man  within  the  private  parts  of  a  woman, 
when  proved,  constitutes  rape.7  In  this  country  it  is  the  general 


1  R.  v.  Stanton,  1  Car.  &  Kir.  415 ;  R.  v.  Case,  1  Eng.  R.  544 ;  Wh.  Cr.  Lawf 
4th  Ed.  584. 

2  Hays  v.  People,  1  Hill,  N.  Y.  Rep.  351 ;  Stephen  v.  State,  11  Ging.  225. 

3  1  Wheel.  C.  C.  381:  People  v.  Mctcalf,  1  Wheel.  C.  C.  378  ;  State  v.  Ship, 
9  Com.  54. 

«  Bait.  C.  105—007 ;  1  Hawk.  P.  C.  Ca.  41 ;  Wh.  Cr.  Law,  584. 

5  People  v.  Abbott,  19  Wend.  192. 

6  R.  v.  Booker,  3  C.  &  P.  589. 

7  R.  ?;.  Allen,  9  C.  &  P.  31 ;  R.  v.  Russell,  1  East,  P.  C.  438,  439  ;  R.  v.  Jor- 
dan, 9  C.  &  P.  118 ;  R.  v.  Hughes,  8  C.  &  P.  752 ;  R.  v.  Sims,  1  C.  &  K.  393 ; 

W.  &  S.  Med.  Juris,  sec.  432. 


RAPE — ADJUDICATED    CASES.  573 

rule,  that  some  entrance  must  be  proved,  but  that  there  need  be 
neither  rupture  of  the  hymen  or  emission. 


REGIXA  v.  WILLIAM  CAMPLIN,  1  L.  &  P.  746. 

The  prisoner  was  indicted  for  ravishing  Jane  Matthews,  on 
the  31st  day  of  December,  1844.  It  was  proved  that  the 
prisoner  made  her  quite  drunk ;  and  when  she  was  in  a  s'ate  of 
insensibility  took  advantage  of  it  and  violated  her.  The  jury 
found  that  the  prisoner  gave  her  the  liquor  for  the  purpose  of 
exciting  her,  not  with  the  intention  of  rendering  her  insensible, 
and  then  having  sexual  intercourse  with  her.  Ballantino,  for  the 
defendant  submitted,  that  under  those  circumstances  the  crime  of 
ra  pe  was  not  committed.  Parke,  B.,  reserved  the  case  for  the 
fifteen  judges.  Verdict — Guilty. 

When  the  case  came  before  the  judges,  Ballantine,  for  the 
prisoner,  said :  "  I  submit,  that  in  this  case  the  offense  of  the 
prisoner  did  not  amount  to  rape.  Lord  Hale,  Mr.  Sergeant 
Hawkins,  Lord  Coke  and  Sir  E.  H.  Easrall,  define  rape  to  be 
the  unlawful  carnal  knowledge  of  a  woman  by  force,  and  against 
her  will  In  the  present  case,  the  giving  the  prosecutrix  liquor 
to  excite  her,  shows  that  the  prisoner  intended  to  bring  her  mind 
to  a  position  that  she  might  yield  to  what  he  did,  and  I  submit, 
that  to  constitute  rape  there  must  be  actual  force  and  actual 
resistance,  and  that  this  can  not  be  supplied  by  any  inference 
whatever. 

Patterson,  J. — Do  you  contend  that  every  woman  who  is  blind 
drunk  at  the  road-side  is  open  to  a  rape  from  every  person  who 
passes  by  ? 

Ballantine. — The  cases  go  to  show  that  there  must  be  actual 
force  and  actual  resistance ;  and  I  submit,  that  insensibility  is 
contradictory  in  terrrs  to  the  definition  of  rape,  as  the  definition 
of  rape  implies  will,  and  the  exercise  of  it.  In  cases  of  robbery, 
as  distinguished  from  larceny,  the  offense  must  be  against  the 
will  of  the  person  robbed ;  thus,  a  person  would  be  guilty  of 


674  MEDICAL  EVIDENCE. 

robbery  by  taking  goods  from  a  person  asleep.  Authorities 
show  that,  if  a  man,  by  fraud,  has  connection  with  a  married 
woman,  she  believing  him  to  be  her  husband,  and  therefore  con- 
senting to  the  connection,  this  is  not  rape. 

Patterson,  J. — If  a  man  came  behind  a  woman  and  gave  her 
a  blow  on  the  head,  and  made  her  insensible,  that,  according  to 
your  doctrine,  is  no  rape,  because  resistance  and  will  are  out  of 
the  question. 

Alderson,  B. — In  cases  of  fraud  the  woman  is  a  willing  agent, 
although  her  will  is  influenced  by  the  fraud ;  but  in  the  case  put 
by  my  brother  Patterson,  there  is  force.  In  that  case  resistance 
would  be  impossible,  from  a  blow  given  by  the  prsioner.  In  the 
present  case,  it  was  rendered  impossible  by  the  liquor  he  gave. 
If  a  woman  was  fainting  at  the  time,  what  would  you  say  then  ? 

Ballantine. — I  would  fall  back  on  the  definition,  i  against  her 
will.'  I  should  draw  the  distinction  between  robbing  by  force, 
and  picking  a  person's  pocket  when  he  did  not  know  it. 

Erie,  J. — Larceny  and  robbery  are  both  committed  invito 
-domino. 

Lord  Denman,  C.  J. — It  is  against  the  general  and  permanent 
will  of  the  party  to  have  his  pocket  picked. 

Alderson,  B. — And  so  may  a  woman  have  a  general  will  not 
to  be  ravished.  Was  there  not  a  case  in  Ireland,  of  a  lady  who 
had  laudanum  given  to  her,  and  who  was  ravished  while  in  a 
state  of  insensibility  ?  What  became  of  that  case  ? 

Ballantine. — In  that  case  the  prisoner  was  condemned  and 
afterward  transported ;  but  in  that  case,  the  jury  found  that  the 
prisoner  had  intended  to  ravish  her  at  all  events.  The  finding 
of  the  jury  here  is  different.  I  submit,  that  as  it  is  neither 
shown  that  the  prisoner  used  force,  nor  that  the  prosecutrix  exer- 
cised any  resistance,  the  offense  of  rape  is  not  committed. 

Lord  Denman,  C.  J. — It  is  put  as  if  resistance  was  essential 
to  a  rape ;  but  that  is  not  so,  although  proof  of  resistance  may 
he  strong  evidence  in  the  case. 


RAPE — ADJUDICATED    CASES.  575 

The  case  was  considered  by  the  judges,  and  Patterson,  J., 
delivered  judgment  as  follows:  William  Campliu,  you  have  been 
found  guilty  of  the  oft'ense  of  rape,  by  the  jury  before  whom 
your  trial  took  place;  but.  from  some  circumstances  which  ap- 
peared upon  that  trial,  the  learned  judge  desired  to  have  the 
opinion  of  his  brethren,  her  Majesty's  judges,  whether  the  offense 
was  complete  in  point  of  law.  It  appeared  upon  the  evidence 
that  the  young  woman,  upon  whose  person  was  committed  the 
oflense,  refused  her  consent  so  long  as  she  had  sense  or  power  to 
express  such  want  of  consent ;  but  that  you  made  her  quite  in- 
sensible by  administering  liquor  to  her,  and  whilst  she  was  in  a 
state  of  insensibility  took  advantage  of  it,  and  violated  her  per- 
son ;  and  the  only  ground  upon  which  any  doubt  could  possibly 
arise  on  this  state  of  facts  was,  that  the  jury  found  that  you 
gave  her  liquor  for  the  purpose  of  exciting  her,  and  then  having 
sexual  intercourse  with  her,  and  not  for  the  purpose  of  rendering 
her  insensible.  It  is  my  duty  to  inform  you,  that,  after  hearing 
counsel  on  your  behalf,  a  great  majority  of  the  judges  are  of 
opinion  that  the  evidence,  that  the  rape  was  committed  without 
the  consent  and  against  the  will  of  the  prosecutrix,  was  sufficient, 
and  that  consequently  the  offense  has  been  completely  proved. 
The  prosecutrix  showed  by  her  words  and  conduct,  up  to  the 
very  last  moment  at  which  she  had  sense  or  power  to  express 
her  will,  that  it  was  against  her  will  that  intercourse  should  take 
place.  And  it  was  by  your  illegal  act  alone,  that  of  administer- 
ing liquor  to  her,  to  excite  her  to  consent  to  your  unlawful 
desires,  that  she  was  deprived  of  the  power  of  continuing  to  ex- 
press her  want  of  consent.  Whatever  your  original  design  was 
in  giving  her  the  liquor,  you  knew  that  it  was  calculated  in  its 
natural  consequences  to  make  her  insensible,  and  you  know  also 
that  it  had  produced  that  effect  upon  her  at  the  time  you  took 
advantage  of  her  insensibility.  Your  case,  therefore,  falls  within 
the  description  of  those  cases  in  which  force  and  violence  consti- 
tute the  crime,  but  in  which  fraud  is  held  to  supply  the  want  of 


576  MEDICAL   EVIDENCE. 

both.  I  have  therefore  the  duty  cast  upon  me  of  pronouncing 
the  sentence  of  the  law,  which  is,  that  you  be  transported  beyond 
the  seas  for  the  complete  term  of  your  natural  life." 

The  several  States  have  enacted  statutory  provisions  relating 
to  rape ;  references  to  which,  with  the  decisions  upon  them,  are 
here  referred  to.1 


1  U.  S.  Law,  Act  3d  March,  1825,  sec.  4—7 ;  Mass.  R.  S.  p.  884  ;  Com.  v. 
Cooper,  15  Mass.  R.  197 ;  Com.  v.  Drum.  19  Beck,  497  ;  Com.  v.  Goodhue,  2 
Metcalf,  193  ;  New  York,  2  R.  S.  663,  sec.  22,  23  :  Penn.  Act  22d  April,  1794, 
3  Dallas,  p.  600,  3  Smith,  p.  187  ;  Act  23d  April,  1829  ;  Virginia  Code,  1849,  c. 
191 — c.  200.  for  similar  offenses  against  negroes  ;  Ohio,  Swan's  Stat.  2G9,  sec.  4, 
5,  6 ;  Williams  v.  State,  14  Ohio,  222 ;  Johnson  v.  State,  19  Ohio,  593  ;  Laugh- 
Mn  v.  State,  18  Ohio,  99. 


CHAPTER  XLII. 

CORONER'S  OFFICE  AND  INQUESTS. 

NEARLY  one  thousand  years  ago,  King  Athelstan,  of  England, 
granted  certain  rights  and  privileges  to  the  authorities  of  Beverley 
who  were  to  attend  the  special  pleas  of  the  crown, — hence  the 
name  of  coroners,  from  corona,  a  crown. 

The  office  from  that  time  onward,  was  considered  a  very  im- 
portant one,  both  as  to  its  duties  and  honors.  The  Lord  Chief- 
Justice  of  the  Queen's  Bench  is  ex-ojfido  the  first  coroner  of  the 
kingdom ;  throughout  which  his  jurisdiction  extends.  As  far 
back  as  Henry  II.,  the  justices,  as  part  of  their  duties,  appointed 
three  knights  and  one  clerk  in  each  county  these  Custodies  placi- 
torum  coronce,  as  they  were  called,  were  keepers  of  the  pleas  of 
the  crown,  and  discharged  the  duties  of  coroners.1  Knights 
alone  were  eligible  to  this  office.2  A  property  qualification  was 
also  required. 

From  the  appearance  of  the  present  lineal  descendant  of  the 
once  high  and  honorable  office,  it  would  never  be  suspected  of 
such  parentage.  Like  the  families  themselves,  who  monopolized 
the  office,  it  has  become  dilapidated,  and  its  significance  has 
departed,  yet  it  is  still  an  office  demanding  a  higher  place  than 
it  now  occupies.  It  should  never  have  been  permitted  to  sink  to 
BO  low  a  point  as  the  one  at  which  it  now  rests. 

There  is  hardly  an  official  position  in  which  there  is  greater 
need  of  sagacity,  skill,  tact,  and  of  legal  and  medical  knowledge ; 


1  History  of  Eng.  Law,  Crabbe,  c.  xi. 
«  3  Edward  I.  c.  10. 
37  (577 


578  MEDICAL    EVIDENCE. 

yet  the  office  is  usually  filled  by  persons  destitute  of  both  these 
qualifications. 

The  old  English  law  provided  that  where  a  sudden  death  took 
place,  under  suspicious  circumstances,  the  coroner  should  issue  a 
warrant,  summon  a  jury  to  make  due  inquiry,  upon  view  of  the 
body,  into  the  manner  of  the  killing,  and  examine  into  all  the 
circumstances  of  the  transaction,  and  that  he  shall  commit  any 
person  to  prison  who  may  be  adjudged  as  the  perpetrator  of  the 
crime,  and  bind  over  the  witnesses  by  recognizances,  to  appear  at 
the  next  term  of  court.  All  these  powers,  and  still  greater  facili- 
ties, are  afforded  the  coroners  under  our  laws. 

When  there  has  been  a  sudden  and  mysterious  murder  com- 
mitted, the  first  court  that  investigates  the  case,  while  all  the  com- 
munity is  excited  to  the  highest  pitch,  is  the  coroner's;  which 
court,  in  its  very  nature  and  powers,  is  designed  to  detect  the 
perpetrator  of  the  crime,  and  to  throw  all  possible  light  upon  the 
transaction.  When  the  coroner  does  not  detect  the  perpetrator 
of  a  homicide,  in  most  cases  he  is  not  detected  at  all.  The 
means  and  facilities  for  determining  who  the  guilty  party  is, 
within  reach  of  the  coroner,  are  very  great.  When  a  crime  has 
just  occurred,  there  is  more  interest  felt  and  wakefulness  exer- 
cised than  afterward.  The  body  of  the  deceased  is  fresh ;  the 
opportunity  of  scientific  examination  are  usually  perfect,  much 
more  so  than  after  disorganization  has  destroyed  the  structure  of 
the  body.  Those  who  saw  the  victim  last,  and  the  circumstances 
surrounding  him.  are  present.  Witnesses  have  not  yet  been  tam- 
pered with,  and  that  security  which  lapse  of  time  gives  to  the 
guilty  party,  is  not  thrown  around  him — the  anxiety  and  fear 
of  being  detected  shows  itself — the  attempt  to  cover  up  the  evi- 
dences of  guilt  is  more  difficult.  If  the  guilty  party  is  followed 
up  immediately  with  quick,  sharp  strokes,  the  chances  of  arriving 
at  the  truth  are  greatly  increased. 

Again,  in  no  court  is  there  allowed  such  unusual  latitude  in 
the  examination  of  witnesses.  The  usual  rigid  rules  of  evidence 
may  be  wholly  disregarded.  Hearsay  evidence,  leading  questions, 


CORONERS    OFFICE   AND    INQUESTS.  579 

and  all  forms  of  examination  may  be  adopted.  The  guilty  or 
suspected  person  may  himself  be  put  upon  the  stand,  if  he  does 
not  object,  when  he  may  be  subjected  to  the  severest  cross- 
examination  possible.  No  technicalities  trammel  the  coroner,  and 
if  he  understands  his  business  and  his  powers,  and  is  ingenious 
enough,  he  may  extort  from  a  witness  a  confession  of  his  guilt  or 
complicity.  In  the  criminal  courts  of  Europe  this  examination 
of  the  criminal  himself  is  a  tremendous  weapon  in  the  hands  of 
an  acute  and  able  officer.  In  France  and  Germany,  the  interro- 
gation of  the  prisoner  is  the  main  incident  of  a  trial.  In  Bavaria, 
the  murderer  is  not  executed  until  he  has  confessed  his  guilt ; 
and  he  is  taken  periodically  from  his  cell,  to  be  examined.  This 
method  of  extorting  the  truth,  by  a  well-directed  battery  of  ques- 
tions, is  precisely  what  our  law  permits  to  the  coroners,  and  the 
opportunity  should  be  skillfully  and  carefully  improved. 

After  the  case  goes  to  the  higher  courts,  the  lips  of  the  prisoner 
are  sealed  by  the  common  law ;  many  of  the  circumstances  are 
forgotten  or  left  indistinct,  antagonistic  influences  are  brought  to 
bear  on  the  witnesses,  and  other  circumstances  conspire  to  render 
convictions  less  certain,  if  the  coroner  does  not  furnish  the  evi- 
dences on  his  preliminary  examination. 

It  is  more  important  that  the  coroner  should  be  a  medical  man 
than  that  he  should  be  a  lawyer ;  because  of  the  importance  of 
the  Medical  Evidence,  involving  many  intricate  and  most  perplex- 
ing scientific  questions,  a  correct  solution  of  which  can  only  be 
made  by  the  best  instructed  minds,  used  to  such  investigations. 

Of  late  years,  this  necessity  for  having  medical  coroners  has 
been  felt,  particularly  in  England  and  in  this  country.  It  should 
be  so,  to  secure  the  ends  of  justice.  The  medical  profession,  too, 
have  a  direct  interest  in  this  matter,  and  they  should  claim  as  a 
right,  this  office.  In  most  cases  of  sudden  death,  or  homicide, 
a  medical  examination  at  the  time,  over  the  dead  body,  well  con- 
ducted by  a  medical  man  as  coroner,  would  not  only  be  conclu- 
sive, as  to  the  condition  of  the  body,  but  the  testimony  would  be 
in  such  certain  and  definite  form,  as  to  confer  honor  upon  the 


580  MEDICAL    EVIDENCE. 

medical  profession  in  the  higher  courts ;  and  those  medical  wit- 
nesses who  did  not  examine  the  body,  could  get  a  correct  idea 
of  the  condition  of  it,  from  those  who  did.  If  the  coroner  is  a 
medical  man,  he  will  know  better  than  one  who  has  not  a  medical 
education,  to  what  extent  the  medical  examination  should  be 
carried. 

Judge  Bouvier  says :  "  The  duties  of  the  coroner  are  of  the 
greatest  consequence  to  society,  both  for  the  purpose  of  bringing 
to  punishment  murderers  and  other  offenders  against  the  lives 
of  the  citizens,  and  of  protecting  innocent  persons  from  criminal 
accusations.  This  office,  it  is  to  be  regretted,  is  regarded  with  too 
much  indifference.  This  officer  should  be  properly  acquainted 
with  medical  and  legal  knowledge,  so  absolutely  indispensable  to 
the  faithful  discharge  of  his  office.  It  not  unfrequently  happens 
that  the  public  mind  is  deeply  impressed  with  the  guilt  of  the 
accused,  and  when  probably  he  is  guilty,  and  yet  the  imperfec- 
tions of  the  early  examinations  leave  no  alternative  to  the  jury  but 
to  acquit.  It  is  proper  in  most  cases  to  procure  the  examination 
to  be  made  by  a  physician,  and  in  some  cases  it  is  the  coroner's 
duty.1 

Dr.  Beck  also  urges  the  difficulty,  in  the  following  language  : 
"  That  the  duties  of  this  office  are  imperfectly  understood,  and 
often  most  negligently  performed,  hardly  admits  of  a  doubt. 
The  individuals  appointed  are  frequently  unfit  for  the  situation, 
both  from  habit  and  education,  while  the  jury  are  too  commonly 
desirous  of  hurrying  through  the  investigation.  It  has  been  pro- 
posed to  remedy  the  first  difficulty  by  selecting  coroners  from 
among  medical  men,  and  there  is  no  doubt  that  the  adminis- 
tration of  criminal  justice  might  be  promoted  thereby.  In 
England,  and  indeed  in  this  country,  considerable  efforts  have 
been  made  of  late  to  procure  the  election  of  medical  coroners."2 

Dr.  Semmes,  in  his  able  report  to  the  "American  Medical 


1  1  Bouvier's  Law  Dictionary,  318. 

2  2  Beck,  Med.  Juris.  2. 


CORONI-Tv's    OFFICE   AND    INQUESTS.  581 

Association,"  on  the  Medico-legal  duties  of  coroners,  says :  "  As 
every  inquest  involves  a  medical  principle,  your  committee  are 
pained  to  acknowledge  that,  from  the  shameless  and  disgraceful 
manner  in  which  coroner's  inquests  in  most  of  the  United  States 
are  necessarily  conducted,  from  the  incompetency  or  want  of  zeal 
and  attention  of  that  officer,  the  inquests  are  rendered  loose, 
vague,  hurried,  and  ill  adapted  to  the  purposes  for  which  they  are 
intended  at  Common  law, — the  discovery  of  the  cause  of  death  in 
cases  of  presumed  or  alleged  felonious  killing, — the  identification 
of  the  body,  and  the  collection  of  that  which  can  often  only  be 
susceptible  of  verification  immediately  after  the  discovery  of  the 
corpse,  and  before  any  change  has  been  made  in  it  and  in  the 
condition  of  the  surrounding  objects.  The  superficial  view  cast 
by  the  jurors  upon  the  dead  body  presented  for  their  inspection, 
— many  of  them  avoiding  to  approach  it  closely,  either  from  re- 
pugnance to  the  sight  or  contact  of  the  dead,  especially  when 
mutilated  or  disfigured  by  wounds,  bathed  in  blood,  or  in  a  state 
of  partial  decomposition,  or  from  fear  of  contracting  some  con- 
tagious or  pestilential  disease,  which  might  possibly  have  been  the 
cause  of  death, — is  scarcely  a  formal  compliance  with  the  require- 
ments of  the  law."1  We  are  indebted  to  this  report  for  many 
of  the  preceding  facts. 

It  is  to  be  regretted,  that  while  the  Medical  Evidence  is  of 
such  acknowledged  importance,  there  has  been  but  a  niggardly 
provision  made  in  most  of  the  States  of  this  Union,  for  a  compen- 
sation of  the  medical  witness,  commensurate  with  the  time  spent, 
and  importance  of  his  investigation.  The  physician  and  the 
chemist  are  referred  to  the  uncertain  action  of  county  commis- 
sioners or  county  judges,  for  their  pay.  "  It  is  to  be  hoped,  that 
such  a  simple  act  of  justice  will  not  much  longer  be  withheld 
from  a  body  of  men  who  render  more  unrequited  services  to  the 
public  than  all  other  classes  and  professions  put  together."  "  By 
the  laws  of  our  State,  (New  York,)  it  is  made  the  imperative 

1  See  Law  Register  for  May,  1858,  p.  390. 


582  MEDICAL   EVIDENCE. 

duty  of  the  coroners  to  summon  a  medical  man  as  witness,  in 
every  case  when  an  inquest  is  held ;  but  they  establish  no  regu- 
lations as  to  examination,  or  to  compensation.  The  law  is,  how- 
ever, frequently  disregarded;  and  where  the  coroner  is  not  a 
regular  physician,  the  examination  is  often  very  superficial  and 
unsatisfactory.  It  is,  therefore,  highly  important  that  the  coro- 
ner should  be  a  medical  man,  otherwise  the  duties  of  the  office 
will  be  imperfectly  understood,  and  negligently  performed."1 

In  England,  provision  is  made  by  law  for  the  remuneration 
of  the  medical  witness,  when  he  is  called  upon  to  make  a  post 
mortem  examination. 

The  medical  man,  when  summoned  as  a  witness  to  give  evi- 
dence in  a  coroner's  court,  is  liable  for  contempt,  if  he  refuses  to 
appear.  He  can  not,  however,  by  the  coroner,  or  any  other 
court,  be  compelled  to  make  a  post  mortem  examination  unless 
he  is  paid  for  it.  In  a  late  case,  Gibson,  C.  J.,  said  :  "Had  the 
plaintiff  below  attended  merely  as  a  witness,  though  as  an  expert, 
he  would  have  been  entitled  to  nothing;  for  as  the  law  provides 
no  compensation  for  witnesses  summoned  by  the  coroners,  they 
must  give  their  attendance ;  and  to  allow  the  plaintiff  as  a  witness, 
even  the  compensation  allowed  to  witnesses  in  other  cases,  would 
be  an  infraction  of  the  fee-bill.  But  he  was  not  called  as  a  wit- 
ness. When  the  testimony  before  the  inquest  was  closed,  it 
seems  the  jurors,  being  unable  to  agree  as  to  the  cause  of  death, 
requested  a  post  mortem  examination,  which  was  made  by  the 
plaintiff  in  their  presence,  who  dispelled  their  doubts  by  the  appli- 
cation of  chemical  tests  to  the  contents  of  the  stomach.  In  this 
he  performed,  not  the  office  of  :i  witness,  but  the  business  of  a 
person  employed  in  a  particular  service.  The  coroner  might 
have  compelled  him  to  swear  to  his  opinion  on  a  superficial  view 
of  the  body,  but  he  could  not  have  compelled  him  to  touch  it,  or 
do  the  more  nauseous  and  dangerous  work  of  opening  it."2 

1  Guy's  Forensic  Medicine,  (Dr.  Lee,)  6. 

2  Allegheny  County,  v.  Watt,  3  Barr.  462. 


APPENDIX. 


A. — NOTES  TO  CHAPTER  I. 


1.  Negligence,  in  correct  legal  phraseology,  is  very  nearly  synonymous  with 
carelessness,  and   signifies   the   want   of  care,  caution,  attention,  diligence,  or 
discretion,  in  one  having  no  intention  of  committing  an  injury.     It  is  a  violation 
of  the  obligation  which  enjoins  care  and  caution.     Even  when  gross,  the  negli- 
gence is  but  an  omission  of  duty.     Tonawanda  R.  R.  Co.  v.  Hunger,  5  Den.  255, 
267;  Amick  v.  O'Hara,  6  Blackf.,  258.     Neglect  of  physician,  see  Odlin  v.  Stetson, 
17  Maine,  247;  Wilmot  v.  Howard,  39  Vt.,  447. 

2.  Negligence  is  the  omission  to  do  something  which  a  reasonable  man, 
guided  by  those  considerations  which  ordinarily  regulate  the  conduct  of  human 
affairs,  would  do,  or  doing  something  which  a  prudent   man   would   not  do. 
Alderson  B.  Blythe  v.  Birmingham  Water  Works  Co.,  11  Exch.,  781. 

3.  A  party  is  not  -negligent  if  he  uses  all  the  skill  and  diligence  which  can 
be  attained  by  reasonable  means,  and  is  not  responsible  for  failure.     Richey  v. 
West,  23  111.,  385  ;  Taylor  «.  Atlantic  Ins.  Co.,  9  Bosw.,  369. 

4.  When  there  is  injury  on  the  part  of  the  plaintiff,  and  negligence  on  the 
part  of  the  defendant  concur,  the  plaintiff  cannot  recover  if  the  defendant  could 
not  have  prevented  the  injury  from  occurring  by  the  exercise  of  due  care.    Belief. 
&c.  R.  Co.  v.  Bailey,  11  Ohio  St.  R.,  333  ;    Lockhardt  v.  Lich.,  46  Penn.  St.  R.,  151. 

5.  Concurring  negligence  arises  when  both  parties  contribute  to  produce  the 
injury  complained  of,  and  there  can  be  no  recovery  in  law  or  equity.     Spencer  v. 
Uvica  &c.  R.  Co.,  5  Barb.,  337;  Brown  v.  Maxwell,  6  Hill,  592  ;   Williams®.  Mich. 
Cent.  R.  Co.,  1  Dutch,  556  ;    Heil  v.  Glanding,  42  Penn,  493  ;    Haley  v.  Earle,  30 
N.  Y.  R.,  208. 

6.  It  has  been  held  that  when  the  direct  cause  of  the  injury  is  the  negligence 
of  the  party  injured,  the  other  parly,  after  becoming  aware  of  the  injured  party's 
negligence,  must  use  a  proper  degree  of  care  to  avoid  the  coasequences  of  such 
negligence.     Wright  t>.  Brown,  4Ind.,  95  ;  9  Ind.,  397;  Kerwhacker  v.  Cleveland, 
C.  &  C.  R.  Co.,  3  Ohio  S.,  172;  also  in  Duval,  114;  19  111.,  499;  18  N.  Y.,  248,  258; 
3  Allen,  176;  Clark  v.  Kirwan,  4  E.  D.  Smith,  21. 

7.  Physicians  are  liable  for  students'  negligence,  or  when  employed  by  third 
persons.     Henke  v.  Hooper,  7  C.  &  P.,  81;  1  Hilliard  on  Torts,  252. 

(588) 


584:  APPENDIX. 

8.  When  the  negligence  of  the  plaintiff  is  relied  upon  to  defeat  hie  recovery, 
he  must  have  been  guilty  of  at  least  ordinary  negligence.    His  failure  to  take 
great  care  is  no  defense  to  the  action.     Ernest  v.  Hudson  R.  R.  Co.,  35  N.  Y.  9,  26; 
Bieseigel  v.  N.  Y.  C.  R.  Co.,  34  N.  Y.,  G22,  628,  632  ;   2  Seld.  Notes,  44 ;   Eakin  v. 
Brown,  1  E.  D.  Smith,  36. 

9.  Though  a  physician  may  be  guilty  of  culpable  negligence,  yet  if  his  act 
was  not  wanton  and  intentional,  and  the  patient  essentially  contributed  to  pro- 
duce the  result,  he  cannot  recover.     Berge  «.  Gardiner,  19  Conn.,  507. 

10.  The  patient  must  also  exercise  ordinary  care  and  prudence.      Eakin  v. 
Brown,  1  E.  D.  Smith,  36;   Spooner  v.  Brooklyn  R.  R.  Co.,  31  Barb.,  419;   Cox  V. 
Westchester  Turnpike  Co.,  33  Barb.,  414;  Morris  v.  Phelps,  2  Hilton,  38. 

11.  The  patient  may  be  negligent  to  a  certain  extent,  and  yet  the  physician 
has  been  so  negligent  that  ordinary  care  on  the  part  of  the  patient  would  not 
have  prevented  the  unfortunate  result,  and  the  patient  will  recover.     Clark  v. 
Kerwin,  4  E.  D.  Smith,  21;    Parker  v.  Adams,  12  Mete.,  417;    White  v.  W.  Co.,  7 
Cush.,  155;  Smith  v.  Smith,  2  Pick.,  621;  Holly  D.  B.  G.  Co.,  8  Gray,  131;  Chamb. 
v.  Porter,  9  Min.,  260. 

12.  For  definition  of  "  reasonable  diligence  and  skill,"  see  Kannen  «.  McMul- 
len,  Peake,  83;   Fornworth  v.  Garrard,  1  Campb.,  38;    West  v.  Martin,  31  Miss., 
375;  Fisher  v.  Samanda,  1  Camb.,  190;  Manypenny  v.  Hartland,  2  C.  &  P.,  378. 

13.  When  a  special  contract  exists  for  a  definite  time,  the  patient  cannot 
discharge  the  physician  before  the   expiration  of  the   contract.      In  all  other 
cases,  the  patient  can  discharge  the  physician  at  any  time  sua  sponte.     A  physi- 
cian must  give  his  patient  reasonable  notice  before  leaving  him.    McDaniel  v. 
Yuba  Co.,  14  Cal.,  444. 

14.  For  a  late  leading  case  on  negligence,  skill,  responsibility,  &c.,  see  Patten 
0.  Wiggin,  51  Maine,  594. 

15.  A  sign,  or  other  proof  that  one  practices  as  a  physician,  is  prima  facie 
evidence  of  his  professional  character.     Sutton  v.  Tracy,  1  Mich.,  243. 

16.  A  physician  is  expected  to  practice  according  to  his  avowed  system.  Bow- 
man v.  Woods,  1  Iowa,  441;  Corei  •».  Maretzek,  4  E.  D.  Smith,  1. 

17.  A  sign  is  a  standing  solicitation  for  business,  and  in  pleadings  a  physician 
may  be  charged  with  having  solicited  the  service  simply  on  the  evidence  of  his 


18.  The  word  physician  or  doctor  is  held  to  mean  any  person  who  makes 
it  his  regular  business  to  practice  physic,  and  no  distinction  is  taken  as  to  the 
various  "  schools,"  and  each  is  expected  to  practice   according  to  his  theory. 
Corsi  v.  Maretzek.  4  E.  D.  Smith,  1;   Brown  v.  Mins,  2  Rep.  Con.  Ct.,  235;   Patten 
V.  Wiggin,  51  Maine,  594;  Reynolds  v.  Graves,  3  Wis.,416. 

19.  A  medical  diploma  is  prima  facie  evidence  of  ordinary  skill.    Leighton  v. 
Sargent,  7  Foster,  N.  H.,  470.     But  not  evidence  per  se  that  the  college  issuing 
it  is  a  regularly   constituted   medical  institution.      Hill  v.  Bodie,  2  Stewart  & 
Porter,  56. 

20.  Usually  the  patient  must  furnish  the  medicines  and  unusual  or  extra 
surgical  instruments,  unless  it  is  the  custom  of  the  physician  to  do  so.    Bassett  v. 
Spofford,  11  N.  H.,  167;  Holland  v.  Adams,  21  Alab.,  680. 

21.  A  physician  has  discretionary  powers  over  his  patient  as  to  modes  of 
treatment- or  the  necessity  of  an  operation,  and  he  may  withhold  from  him  a 


APPENDIX.  585 

knowledge  of  his  condition.      McClellan  v.  Adams,  19  Pick.,  333;    Townley  v. 
Leach,  11  Cush.,  397. 

22.  Dentists  are  liable  to  same  rules  as  those  applicable  to  physicians  and 
surgeons.     Simonds  v.  Henry,  39  Maine,  153. 

23.  For  failure  in  detecting  the  nature  of  the  disease,  see  Fowler  v.  Sargeant, 
1  Grant,  355.     In  cases  of  malpractice,  it  is  usual  to  inform  the  jury  of  the 
circumstances  of  the  respective  parties.    Ib. 

24.  Gratuitous   service    does   not    relieve  the   medical   attendant  from  lia- 
bility.    Shiels  7).  Blackburn,  1  H.  Black,  159;    Nelson  v.  Mackintosh,  1  Starkie, 
188;  Wilson  v.  Brett,  11  M.  &  W.,  113.     He  is  also  liable  in  public  institutions. 
Pippin  v.  Shep.,  11  Price,  400.      If  employed  'by  a  third  party,  he  is  liable.     1 
Billiard  on  Torts,  252.     Or  by  an  infant.     Gladwell  v.  Sleggall,  5  Bingham, 
N.  C.,  733. 

25.  Particular  acts  of  misconduct  of  the  defendant  might  be  given  in  evi- 
dence to  sustain  general  allegations  in  the  declaration  ;   and  that  it  was  compe- 
tent for  the  plaintiff  to  show  by  what  means  such  injuries  were  received  ;  and 
that  the  declaration  of  the  defendant  that  B.  was  infected  with  venereal  disease, 
and  that  this  was  the  caute  of  the  difficulty  of  her  case,  it  being  proved  that  she 
had  not  this  disease,  was  admissible,  for  the  only  purpose  of  evincing  the  igno- 
rance of  C.  as  to  the  real  state  of  her  case  ;   and  that  it  was  competent  to  show 
that  the  defendant  had  not  been  regularly  bred  to  his  profession,  for  rebutting 
purposes.     Grannis  v.  Brandon,  5  Day,  260. 

26.  Malpractice  cases  reported  in  medical  journals.     See  40  Boston  Med.  and 
Surg.  Journal,  318;  54  do.,  109,  129, 149,  229;  55  do.,  515;  56  do., 9, 25, 148;  57  do., 
222;  59  do.,  364;  64  do  ,  97,  505;  65  do.,  299;  66  do.,  95,  524,  544;  3  Amer.  Medical 
Monthly,  153;  2  Med.  Times,  (N.  Y.,)  365.     A  late  and  important  case  is  Walsh  v. 
Sayer,  tried  in  the  Supreme  Court,  city  of  New  York,  in  1868,  (one  vol.,)  published 
by  Geo.  H.  Shaw  &  Co.,  New  York. 

27.  In  an  action  by  a  person  who  had  been  a  patient  at  a  hospital,  for  mal- 
treatment there  by  two  surgeons,  it  appearing  that  the  alleged  maltreatment  was 
in  the  administration  of  a  hot  bath  which  they  had  ordered,  but  which  it  was  no 
part  of  their  ordinary  duty  personally  to  direct  and   superintend,  and  at  the 
actual  administration  of  which  they  were  not  present.     Held  that  he  was  r_ot 
entitled  to  expect  more  than  the  usual  and  ordinary  degree  of  care  and  attention 
at  the  hands  of  the  surgeons.      And  that,  if  they  were  not  personally  cognizant 
of  the  alleged  ill  usage,  they  were  not  liable.     Perionowsky  v.  Freeman,  4  Fost 
A  F.,  977. 

28.  No  particular  system  affords  a  test  of  skill :   all  "  schools"  seem  to  stand 
before  the  law  alike.     Corsi  v.  Maretzek,  4E.  D.  Smith,  1;   Bowman  v.  Woods,  1 
Green,  (Iowa,)  441;  Com.  v.  Thompson,  6  Mass.,  134.    And  yet  the  law  does  not 
countenance  quackery.     Long  v.  Morrison,  14  Ind.,  595;   Ritchey  v.  West,  23  111., 
385;   Fowler  v.  Sargeant,  1  Grant,  (Pa.,)  355;  Wood  v.  Clapp,  4  Sneed,  65.     In 
North  Carolina  it  has  been  held  that  what  is  reasonable  skill  in  the  treatment  of 
a  patient  is  a  question  of  law  not  to  be  determined  by  a  jury.     Woodward  v. 
Hancock,  7  Jones'  Law,  384. 

29.  Failure  to  remove  the  placenta  after  child-birth  is  highly  culpable  negli- 
gence.    Lynch  v.  Davis,  12  How.  Pr.,  323. 


586  APPENDIX. 

30.  On  the  administration  of  anesthetics,  see  Jones  v.  Fay,  4  Fost.  &  F.,  525. 

31.  The   plaintiff  had   settled   with  a  railroad   company   on   the  mistaken 
opinion  that  the  injury  was  slight.     Held  that,  even  assuming  that  his  injuries 
were  greater,  there  was  no  ground  of  action.     Pirn  v.  llopjr,  2  Fost.  &  F.,  783. 

32.  In  an  action  on  tho  case  against  a  physician  for  malpractice,  it  is  not 
competent  for  the  plaintiff  to  give  evidence  that  the  defendant  abandoned  the 
patient  and  refused  to  attend  upon  him,  unless  the  cause  of  action  is  so  laid  in 
the  declaration.     Bemus  v.  Howard,  3  Watts,  255. 

33  A  person  not  qualified,  as  not  being  a  regular  practitioner,  but  assuming 
to  be  or  to  practice  as  such,  and  undertaking  to  treat  another  for  a  disease,  is 
liable  ior  an  injury  caused  by  ignorant  and  improper  treatment,  by  which  the 
patient  is  rendered  worse  instead  of  better,  and  is  injured  by  the  use  of  improper 
medicines.  Ruddock  v.  Lowe,  4  Fost.  &  F.,  519. 


B. — NOTES  TO  CHAPTER  II. 

1.  "We   regard   the   subject   of   this   Chapter   of   the   utmost  importance, 
as  tending,  if  properly  considered,  to  place   before   the   lawyer  the  real  and 
unavoidable  causes  of  failure  on  the  part  of  the  physician  in  the  treatment  of 
disease.     Could  the  capable  and  the  conscientious  legal  adviser  clearly  under- 
stand and  be  thoroughly  impressed  with  the  inherent  elementary  difficulties  in 
the  practice  of  medicine,  he  would  be  slow  to  counsel  prosecutions  of  medical 
men  ;  and  had  the  Court  the  same  knowledge,  we  believe  that  a  nonsuit  would 
be  the  summary  termination  of  many  a  trial  for  alleged  malpractice.     It  is  upon 
these  subjects  that  the  legal  profession  is  in  sad  want  of  information,  and  we 
turned  to  this  Chapter  in  the  belief  that  the  medical  education  of  the  author 
would  enable  him  to  elucidate,  in  precise  and  accurate  terms,  the  true  source  of 
failure  in  practical  medicine  of  which  the  physician  is  himself  so  often  conscious." 
Review  of  this  work  (1st  edition)  in  Am.  Journal  of  Med.  Sciences  for  July,  I860. 

2.  "  The  mecfianism  of  the  human  body  is  clear,  and  that  is  all.     We  see  the 
workmen  and  the  tools,  but  the  skill  that  guides  the  work  and  the  power  tbat 
performs  it,  are  as  invisible  as  ever.    We  have  learned  nothing  but  the  mechanism 
of  life,  and  are  no  nearer  its  essence.    Beyond  the  mechanical  facts,  all  is  mystery 
in  th  )  movements  of  organization,  a**  profound  as  the  fall  of  a  stone  or  the  forma- 
tion of  a  crystal.     To  the  chemist  and  the  microscopist  the  living  body  presents 
the  same  difficulties  arising  from  the  fact  that  everything  is  in  perpetual  change 
in  the  organism.    The  fibrine  of  the  blood  puzzles  the  one  as  much  as  its  globules 
puzzle  the  other.    In  the  brain  we  are  sure  we  do  not  know  how  to  localize  func- 
tions ;  in  the  spinal  cord  we  think  we  know  something,  but  there  are  so  many 
anomalies  and  seeming  contradictions,  and  sources  of  fallacy,  that,  beyond  the 
facts  of  crossed  paralysis  of  sensation  and  the  conducting  agency  of  the  gray 
substance,  I  am,  afraid  we  retain  no  cardinal  principles  discoveied  since  the  devel- 
opment of  the  reflex  functions  took  its  place  by  Sir  Charles  Bell's  great  discovery. 
No  satisfactory  and  conclusive  answer  has  been  made  to  these  questions.     Why 
does  one  cell  become  nerve  and  another  bone  ?   why  one  select  bile,  another  fat  ^ 


APPENDIX.  587 

How  is  the  solvent  agency  of  the  digestive  fluid  explained  ?  What  is  the  mean- 
ing of  "  affinity  "  or  "  catalysis  "  in  chemistry  ?  How  is  it  that  the  liver  secretes 
sugar  ?  or  how  are  blood-corpuscles  formed  out  of  lymph-corpuecles,  and  what 
becomes  of  them  ?  What  is  the  office  of  the  viscular  glands,  the  spleen,  the 
thyroid  and  thymus  bodies?  What  is  the  function  of  Peyer's  patches?  Do  these 
glandules  perform  the  office  of  lymphatic  glands?  Which  theory  of  animal 
heat  is  correct — that  of  Black,  Lavoisier,  Crawford,  or  Liebig,  or  of  no  one  of 
them?  That  of  Liebig  now  being  doubted,  who  will  explain  the  wonder?" 
Oliver  Wendell  Holmes,  Professor  of  Anatomy  in  Harvard  University. 

3.  "  Existing  chemistry  is  therefore  all  powerful  in  the  circle  of  mineral 
nature,  even  when  its  processes  are  carried  on  in  the  heart  of  the  tissues  of  plants 
or  animal-*,  and  at  their  expense.  And  she  has  advanced  no  farther  than  the 
chemistry  of  the  ancients  in  the  knowledge  of  life,  and  in  the  exact  study  of 
living  matter ;  like  them,  she  is  ignorant  of  the  mode  of  generation.  *  The 

chemist  has  never  manufactured  anything  which,  near  or  distant,  was  susceptible 
even  of  the  appearance  of  life.  Everything  he  has  made  in  his  laboratories 
belongs  to  brute  matter  ;  as  soon  as  he  approaches  life  and  organization,  he  is 
disarmed."  Inaugural  Lecture  before  the  London  Chemical  Society,  in  honor  of 
Faraday,  June  18,  1869,  by  Dumas. 


C. — NOTE  TO  CHAPTER  III. 

Physicians  and  surgeons  who  offer  themselves  to  the  public  as  practitioners, 
impliedly  promise,  thereby,  that  they  possess  the  requisite  knowledge  and  skill 
to  enable  them  1 :>  treat  such  cases  as  they  undertake  with  reasonable  success. 

This  rule  does  not  require  the  possession  of  the  highest,  or  even  the  average 
skill,  knowledge,  or  experience,  but  only  such  as  will  enable  them  to  treat  the 
case  understandingly  and  safely. 

The  law  implies  that,  in  the  treatment  of  all  cases  which  they  undertake, 
they  will  exercise  reasonable  and  ordinary  care  and  diligence. 

They  are  also  bound  always  to  use  their  best  skill  and  judgment  in  deter- 
mining the  nature  of  the  malady  and  the  best  mode  of  treatment,  and  in  all 
respects  to  do  their  best  to  secure  a  perfect  restoration  of  their  patients  to  health 
and  soundness. 

But  physicians  and  surgeons  do  not  impliedly  warrant  the  recovery  of  their 
patients,  and  are  not  liable  on  account  of  any  failure  in  that  respect,  only  through 
some  default  of  their  own  duty,  as  already  denned.  Patten  v.  Wiggin,  51 
Maine,  594. 


D. — NOTE  TO  CHAPTER  IV. 

"  According  to  accurate  statistics  to  which  we  have  access,  in  several  hundred 
suits  for  malpractice,  but  little  over  two-thirds  were  for  the  causes  assigned 
above,  (amputations,  fractures  and  dislocations.)  Of  one  hundred  and  forty-two 


588  APPENDIX 

suits  growing  out  of  amputations,  fractures  and  dislocations,  but  eight  were  refer- 
able to  amputations,  thirty-two  to  dislocations,  and  the  remaining  one  hundred 
and  two  to  fractures.  We  allude  to  these  statistics,  not  to  prove  that  the  subject 
of  amputations  or  dislocations  occupy  too  much  space  in  this  work,  but  to  show 
that  there  are  many  other  causes  of  malpractice  suits  equally  (and  in  many 
instances  far  more)  entitled  to  consideration  than  these.  The  practice  of  obstetrics 
has  given  origin  to  a  large  number  of  suits  for  alleged  malpractice,  and  medico- 
legal  questions  thence  arising  would  be  appropriate  to  the  pages  of  such  a  work." 
Review  of  this  work  (1st  edition)  in  Am.  Journal  of  Med.  Sciences,  July,  1860. 


E. — NOTE  TO  CHAPTER  X. 

Prof.  March,  of  Albany,  an  able  surgeon,  was  once  sued  by  the  father  of  a 
child  ten  or  twelve  years  of  age,  upon  whom  he  performed  an  operation  for 
strabismus.  Inflammation  followed,  and  the  cornea  become  opaque.  The  Court 
charged  the  law  as  laid  down  in  Leighton  v.  Sargent,  ante,  135. 


F. — NOTES  TO  CHAPTER  XVIII. 

1.  A  physician  cannot,  as  a  witness,  be  allowed  to  express  his  professional 
opinion  as  necessarily  to  imply  his  belief  of  material  facts  outside  of  his  art  or 
profession,  and  not  within  his  own  knowledge,  and  which  are  not  in  their  nature 
subject  matter  of  mere  opinion.     William  Moore  v.  State  of  Ohio,  17  O.  S.  R.,  521; 
McCurry  v.  Hooper,  12  Ala.,  823. 

2.  A  physician  cannot  give  an  opinion  as  to  whether  another  practitioner 
had  acted  honorably  and  faithfully;  nor  can  he  give  an  opinion  on  the  opinion  of 
another  expert.     Campbell  v.  Richards,  5  B.  &  Adolph,  840;   Ramadge  v.  Ryan,  9 
Singh.,  333. 

?.  A  physician  who  for  more  than  thirty  years  has  devoted  his  attention 
almost  exclusively  to  the  treatment  of  insane  persons  cannot  be  permitted,  as  an 
expert,  to  testify  as  to  the  medical  capacity  of  a  person  not  previously  insane,  but 
in  the  last  stages  of  disease.  Fairchild  v.  Bascom,  35  Vt.,  398. 

4.  A  physician's  opinion  should  be  formed  entirely  from  his  own  examina- 
tion, and  not  from  information  derived  from  others,  even  if  that  information  is 
communicated  by  the  attending  physician.      Heald   v.  Wing,  45  Maine,  392; 
Whetherbee's  Ex'rs  v.  Whetherbee's  Heirs,  38  Vt.,  454. 

5.  There  is  no  greater  or  more  common  mistake  among  medical  men  than  to 
suppose  that  an  experienced  practitioner  is  necessarily  a  skillful  medical  expert 
or  a  safe  medical  witness.     Lecture  by  Prof.  Christison  before  the  Royal  College 
of  Physicians,  Edinburgh.     London  and  Edin.  Journal  of  Medical  Science,  Nov., 
1851,  p.  402. 

6.  A  physician  who  has  not  made  the  subject  of  insanity  a  special  study, 
and  who,  when  his  patients  required  medical  treatment  on  insanity,  was  in  the 
habit  of  calling  on  a  physician  who  made  insanity  a  specialty,  or  recommending 


APPENDIX.  589 

the  removal  to  an  insane  asylum,  is  not  competent  to  give  an  opinion  on  a  hypo- 
thetical case  put  to  him.  Com.  ».  Rich,  14  Gray,  335,  337.  In  a  late  case  in 
Massachusetts,  a  physician  who  had  not  made  insanity  a  study  was  allowed  to 
give  opinions  on  questions  of  insanity.  Barter  r.  Abbott,  7  Gray,  71,  80. 

7.  In  American  Courts,  the  rule  is  to  put  the  facts  to  which  other  witnesses 
testify  in  a  hypothetical  form,  and  ask  the  witness  his  opinion  on  such  state  of 
facts.     Woodbury  v.  Obear,  7  Gray,  467,  471;   Hunt  v.  Lowell  Gas  Light  Co,,  8 
Allen,  1G9. 

8.  A  medical  witness  may,  when  the  issue  is  sanity  or  insanity,  be  asked 
whether  such  and  such  appearances,  proved  by  other  witnesses,  are,  in  his  judg- 
ment, symptoms  of  insanity;  but  he  cannot  be  asked  if  the  act  with  which  the 
defendant  is  charged  is  an  insane  act ;  for  this  is  a  fact  to  be  decided  by  the  jury. 
Rex  r.  Wright,  R.  &  R.,  456;  Rex  v.  Searle,  1  M.  &  Bab.,  75;  Collett  r.  Collett,  1 
Curtis,  687;  Malton  v,  Nesbit,  1  C.  &  P.,  72. 

9.  In  White  r.  Bailey,  10  Mich.,  155,  it  is  held  to  be  improper  to  inquire  of  a 
medical  witnc  ss  whether  the  person  in  question  possessed  sufficient  capacity  to 
transact  business  or  to  make  a  will. 

10.  The  following  question  may  be  put  to  a  professional  witness  who  has 
heard  all  the  evidence  before  a  jury  :  "  Assuming  the  facts  stated  in  the  evidence 
to  be  true,  what  state  or  condition  does  it  indicate  ?  "     Collett  v.  Collett,  1  Curtis, 
687;  Rex  v.  Searle,  1  M.  &  Rob.,  75;  Fenwick  v.  Bell,  1  C.  &  Kir.,  312;  McNaugh- 
ton's  case,  10  Cl.  &  F.,  200. 

11.  Special  knowledge  must  be  fully  established   before  a  witness  can  be 
examined  as  an  expert.    Sinclare  v.  Roush,  14  Ind.,  450;  Winans  r.  N.  Y.  &  E.  R. 
Co.,  21  Howard  U.  S.,  88;  Com.  v.  Wilson,  1  Gray,  337;  Daniels  r.  Mosher,  2  Mich., 
183;  Lester  v,  Pittsfort,  7  Vt.,  161;  Mendum  v.  Com.,  6  Rand.,  704;  Elfelt  v.  Smith, 
1  Minn.,  125;  Tullis  r.  Kidd,  Alab.,  648. 

12.  The  witness  must  be  strictly  confined  to  the  special  knowledge  while 
testifying  as  an  expert.     Woodin  ».  Plafle,  1  Parker  Cr.  R.,  464;  Concord  R.  v. 
Greeley,  3  Foster,  237;   Cooke  v.  State,  4  Zabrisk,  843;   Robertson  ».  Stork,  15 
N.  H.,  109;    Rider  r.  Ocean  Ins.  Co..  20  Pick..  259;   Morse  v.  State,  6  Conn.,  9; 
Sowers  v.  Duke,  8  Minn.,  23;  Page  v.  Parker,  40  N.  H.,  47;  Woodbnrn  v.  Farmers' 
&  M.  Bank,  5  Watts  &  Serg.,  447;  Rochester  v.  Chester,  3  N.  H.,  349. 

13.  Limited  knowledge,  as  attending  upon  persons  made  sick  by  breathing 
gas  from  the  same  leak,  does  not  qualify  one  to  act  as  an  expert.     Emmerson  v. 
L.  G.  L.  Co.,  6  Allen,  146. 

14.  In  an  action  to  recover  damages  for  personal  injuries,  medical  witnesses 
may  be  called  and  give  their  opinion  as  to  the  permanency  of  the  injury.     Buell 
v.  N.  Y.  C.  R.  Co.,  31  N.  Y.  Court  of  Appeals,  314. 

15.  The  opinions  of  persons  not  experts  must  be  sustained  by  facts.      Seibles 
v.  Blackwell,  1  McMullan,  56, 

16.  The  opinion  of  a  witness  who  is  not  an  expert  as  to  the  sanity  of  one 
charged  with  crime  is  incompetent,  although  based  upon  his  own  knowledge  of 
facts.    Com.  r.  Fairbanks,  2  Allen,  511.    Referring  to  the  case  of  Baxter  r,  Abbot, 
the  Court  says :  "  It  was  only  held,  by  a  decision  not  unanimous,  that  the  opinion 
of  a  family  physician  as  to  the  sanity  of  a  testator  might  be  introduced  in  evidence. 
But  in  general,  where  the  jury  have  the  facts  in  detail,  they  are  as  competent  to 


590  APPENDIX. 

form  a  correct  j  udgment  as  the  witness ;  and  the  practical  experience  of  those 
familiar  with  Courts  shows  that  the  defense  of  insanity  is  one  easy  to  be  made, 
and  favorably  listened  to  by  juries.  The  rule,  therefore,  should  not  be  extended 
beyond  the  adjudicated  cases." 

17.  Mr.  Justice  Davis,  of  the  Supreme  Court  of  Maine,  who,  after  saying  that 
lie  considers  juries  far  more  trustworthy  than  experts  on  the  subject  of  insanity, 
remarks :   "  If  there  is  any  kind  of  testimony  that  is  not  only  of  no  value,  but 
even  worse  than  that,  it  is,  in  my  judgment,  that  of  medical  experts.     They  may 
be  able  to  state  the  diagnosis  of  the  disease  more  learnedly;   but  upon  the  ques- 
tion whether  it  had,  at  a  given  time,  reached  such  a  stage  that  the  subject  of  it 
was  incapable  of  making  a  contract,  or  irresponsible  for  his  acts,  the  opinion  of 
his  neighbors,  if  men  of  good  common  sense,  would  be  worth  more  than. that  of 
all  the  experts  in  the  country."     Redfield  on  Wills,  2d  ed.,  part  I,  pp.  103,  105. 

18.  Mr  Justice  Grier,  of  the  Supreme  Court  of  the  United  States,  made  the 
following  remarks  in  delivering  the  opinion  of  the  Court  in  Winans  v.  New  York 
A  Erie  Railway:  "  I'xperience,"  said  the  learned  Judge,  "has  shown  that  opposite 
opinions  of  persons  professing  to  be  experts  may  be  obtained  to  any  amount;  and 
it  often  occurs  that  n:>t  only  many  days,,  but  even  weeks,  are  consumed  in  cross- 
examinations  to  test  the  skill  or  knowledge  of  such  witnesses,  and  the  correct- 
ness of  their  opinions,  wasting  the  time  and  wearying  the  patience  of  both  the 
Court  and  the  jury,  and  perplexing  instead  of  elucidating  the  question  involved 
in  the  issue."    21  Howard,  101.     And  in  his  charge  to  the  jury,  in  the  recent  trial 
of  Andrews  in  Massachusetts,  Chief  Justice  Chapman  thus  alludes  to  the  conflict- 
ing opinions  of  the  medical  experts  in  the  case :  "  I  think  the  opinions  of  experts 
are  not  so  highly  regarded  as  they  formerly  were ;  for,  while  they  often  afford 
great  aid  in  determining  facts,  it  often  happens  that  experts  can  be  found  to 
testify  to  any  theory,  however  absurd."    Boston  Med.  and  Surg.  Journal,  Feb.  25, 
1869.    To  these  opinions  may  be  added  that  of  the  late  Chief  Justice  of  Vermont, 
a  jurist  of  high  reputation,  who,  in  his  valuable  work  on  Wills,  remarks  that 
"experience  has  shown,  both  here  and  in  England,  that  medical  experts  differ 
quite  as  widely  in  their  inferences  and  opinions  as  do  the  other  witnesses.     This 
has  become  so  uniform  a  result  with  medical  experts  of  late  that  they  are  begin- 
ning to  be  regarded  much  in  the  light  of  hired  advocates,  and  their  testimony  as 
nothing  more  than  a  studied  argument  in  favor  of  the  side  for  which  they  have 
been  called.     So  uniformly  has  this  proved  true  in  our  experience,  that  it  would 
excite  scarcely  less  surprise  to  find  an  expert  called  by  one  side  testifying  in  any 
particular  in  favor  of  the  other  side  than  to  find  the  counsel  upon  either  side 
arguing  against  their  clients  and  in  favor  of  their  antagonists." 

19.  In  a  very  late  case  in  Massachusetts,  a  question  proposed  to  an  expert 
was  excluded  because  it  sought  to  establish  a  historical  fact  under  the  guise  of  a 
scientific  opinion.     McMahon  v.  Tyng,  14  Allen,  171.     It  is  a  well-settled  rule  of 
law  that  witnesses  cannot  state  their  views  on  matters  of  legal  or  moral  obliga- 
tion, nor  on  the  manner  in  which  other  persons  would  probably  be  influenced  if 
the  parties  acted  in  one  way  rather  than  in  another.     Therefore  the  opinions  of 
medical  practitioners  upon  the  question  whether  a  certain  physician  had  honora- 
bly and  faithfully  discharged  his  duty  to  his  medical  brethren  have  been  rejected. 
Greenleaf  on  Evidence,  §441.      But  this  rule  does  not  prevent  a  medical  man 
from  testifying  to  a  fact  derived  from  his  own  observation,  from  which  another 


APPENDIX.  591 

medical  man's  incapacity  or  unfaithfulness  might  be  inferred.  Thus,  in  an 
action  to  recover  damages  for  a  personal  injury,  a  physician  was  allowed  in  a 
recent  case  to  testify  what  had  been  another  physician's  previous  treatment  of 
his  patient,  what  effect  it  had  upon  him,  and  whether  or  not  he  saw  any  evidence 
that  the  patient  had  been  injured  by  such  treatment.  Barber  ?•.  Merriam,  11 
Allen,  322.  It  was  held,  in  the  same  case,  that  the  statement  of  a  patient  to  his 
physician  as  to  the  character  and  seat  of  his  sensations,  made  for  the  purpose  of 
receiving  medical  advice,  are  competent  evidence  in  his  favor  in  an  action  to 
recover  damages  for  a  personal  injury,  even  though  such  statements  were  not 
made  till  after  the  action  was  brought.  This  is  an  exception  to  that  rule  of  law 
which  confines  expressions  of  the  bodily  or  mental  feelings  of  a  party  to  prove 
the  existence  of  such  feelings  to  those  made  at  the  time.  In  both  of  these 
cases  the  admission  of  this  testimony  is  contrary  to  the  general  principle  of 
evidence  which  excludes  hearsay,  because  it  cannot  be  subjected  to  the  ordeal  of 
a  cross-examination  to  test  its  truth.  It  is  admitted,  however,  from  the  necessity 
of  the  case,  as  this  is  the  only  way  by  which  the  condition  of  a  patient  can  be 
made  known  to  his  physician,  who  has  a  fair  opportunity  of  ascertaining  its 
correctness  by  observation,  and  it  is  for  the  interest  of  the  patient  to  tell  the 
truth  under  these  circumstances.  And  as  the  opinion  of  the  physician  would  be 
competent  evidence  in  such  a  case,  it  would  be  absurd  to  keep  from  the  jury  the 
reasons  for  his  opinion,  as  they  would  then  be  unable  to  determine  its  soundness. 
But  an  expert  will  not  be  allowed  to  express  an  opinion  upon  the  value  of  the 
opinions  of  other  witnesses  in  the  case.  It  is  not  his  province  or  duty  to  make 
such  comparisons.  Haverhill  Loan  and  Fund  Association  v.  Cronin,  4  Allen,  141. 
But  the  narration  by  a  patient  to  his  physician  of  the  cause  of  injuries  received 
several  months  previously  is  not  admissible  as  evidence  of  that  cause.  Chapin  v. 
Inhabitants  of  Marlborough,  9  Gray,  244. 

20.  The  wish  to  appear  learned  sometimes  influences  the  witness  to  make  a 
pedantic  use  of  technical  terms,  and  even  professional  men  who  are  not  troubled 
with  a  desire  to  parade  the  treasures  of  their  vocabulary  often  use  language 
which,  although  intelligible  enough  to  the  scientific  student,  is  wholly  beyond 
the  comprehension  of  the  Court  and  jury.     The  following  anecdotes  illustrate 
the  ridiculous  extent  to  which  this  practice  has  sometimes  been  carried :  "  In  a 
case  of  alleged  child-murder,  a  medical  witness,  being  asked  for  a  plain  opinion 
of  the  cause  of  death,  said  that   it  was  owing  '  to  atelectasis  and  a  general 
engorgement  of  the  pulmonary  tissue.'     On  a  trial  for  an  assault,  which  took 
place  at  the  Assizes  some  years  since,  a  surgeon,  in  giving  his  evidence,  informed 
the  Court  that,  on  examining  the  prosecutor,  he  found  him  suffering  from  a  severe 
contusion  of  the  integuments  under  the  left  orbit,  with  great  extravasation  of 
blood,  and  ecchymosis  in  the  surrounding  cellular  tissue,  which  was  in  a  tumefied 
state.    There  was,  also,  considerable  abrasion  of  the  cuticle.'    Judge:  'You  mean, 
I  suppose,  that  the  man  had  a  bad  black  eye.'     Witness:  'Yes.'     Judge:  'Then 
why  not  say  so  at  once?' "     Taylor's  Med.  Jur., 6th  Am.  ed.,  53. 

21.  If  the  expert  does  not  understand  the  question,  it  is  very  often  his  best 
course  to  acknowledge  his  ignorance  of  the  subject.     Let  this  be  done  distinctly. 
The  question  may  be  presented  in  another  form.     If  not  understood,  let  this  be 
at  once  stated.     Dr.  Walter  Channing. 


592  APPENDIX. 

Q. — FEES — GENERAL  NOTES. 

1.  A  surgeon  or  physician  is  entitled  to  a  reasonable  reward  for  his  services. 
The  amount  is  a  question  for  the  jury.    The  eminence  of  the  practitioner,  wealth 
of  patient,  delicacy  and  difficulty  of  operation  to  be  considered.     The  principle 
has  never  been  adopted  in  this  country  that  the  professions  of  physicians  and 
counselors  are  merely  honorary,  and  cannot  be  charged  for.     Adams  r>.  Stevens, 
26  Wend.,  451;  Baxter  v.  Gray,  4  Scott  N.  R.,  374;  Mock  v.  Kelley,  3  Alab.,  387; 
Beekman  «.  Planter,  15  Barb.,  550;  Judah  v.  McNamee,  3  Blackf.,  269;  McPherson 
v.  Chedell,  24  Wend.,  15;  Simmons  «.  Means,  8  Sm.  &  Marsh,  397;  Rouse  v.  Morris, 
17  Ser.  &  R.,  328.   Smith  v.  Watson,  14  Vt ,  332;   Sweet  «.  Hooper,  1  Davies  Ab., 
619;  Mooney  «.  Lloyd,  5  Ser.  &  R.,  416;  Wilcoks  on  Med.  Prof.,  111.     Can  recover 
for  services  of  students.    People  v.  Monroe,  4  Wend.,  200.    No  agreed  specified 
price  necessary.     Story,  Bailm.,  §375.     Book  of  original  entries  may  be  offered  in 
evidence,  supported  by  his  own  oath,  3  Dane's  Ab.,  cap,  81,  a.  5,  §16.      Success 
not  necessary  to  a  recovery  of  fees.     Kanna  v.  McMullen,  Peake,  83;   Hupe  v. 
Phelps,  2  Starkie,  424. 

2.  A  medical  charge  should  be  specific,  and  not  general,  giving  the  number 
of  visits  and  dates.     Hughes  v.  Hampton,  3  Const.  Rep.,  (S.  C  .)  745.     He  is  not, 
however,  limited  to  the  «,mount  of  the  first  bill  presented,  if  the  services  are 
shown  to  be  worth  more.     Miller  v.  Beal,  26  Ind.,  234.     "  Consultation  "  visits 
must  be  limited  ;  if  frequent,  they  become  ordinary  visits.    Succession  of  Duclas, 
11  Louis.,  A.,  406.    Physician  and  surgeon,  acting  together  in  the  management  of 
a  case,  may  be  sued  jointly.    1  Slater  v.  Baker  and  Stapleton,  2  Wilson,  359.    An 
epidemic  does  not  authorize  exorbitant  fees.     Collins  v.  Grady,  13  Louis.,  A.,  95; 
also,  2  Louis  ,  331.     Cannot  recover  fees  if  guilty  of  malpractice.      Bell  nger  v. 
Craigue,  31  Barb.,  534;    Long  v.  Morrison,  14  Ind.,  595;   Ritchey  v.  West,  23  111., 
385;  2  Parsons  on  Contracts,  106. 

3.  A  physician  must  respond  to  the  subpoena  of  a  Court ;  but  when  put  upon 
the  stand  as  an  expert,  he  is  not  obliged  to  testify  until  he  is  paid,  by  the  party 
calling  him,  such  a  fee  as  the  professional  opinion  and  time  spent  in  Court  would 
be  worth  under  ordinary  circumstances  out  of  Court.     1  Green.  Ev.,  §310,  n; 
Webb  v.  Page,  1  Carr  &  Kir.,  23.      In  this  case  the  Court  said  :  "  There  is  a  dis- 
tinction between  the  case  of  a  man  who  sees  a  fact  and  is  called  to  prove  it  in  a 
Court  of  justice,  and  that  of  a  man  who  is  selected  by  a  party  to  give  his  opinion 
on  a  matter  with  which  he  is  peculiarly  conversant  from  the  nature  of  his  em- 
ployment in  life.     The  former  is  bound,  as  a  matter  of  public  duty,  to  speak  of  a 
fact  which  happens  to  have  fallen  within  his  knowledge :    without  such  testi- 
mony the  course  of  justice  must  be  stopped.     The  latter  is  under  no  such  obliga- 
tion :  there  is  no  such  necessity  for  his  evidence ;  and  the  party  calling  him  must 
pay  him."     Taylor's  Med.  Juris.,  6th  Amer.  ed.,  38;   "Redfield  on  Wills,  2d  ed., 
part  1, 155,  note  46. 

4.  In  a  case  in  the  U.  S.  District  Court,  Mr.  Justice  Sprague  refused  to  compel 
the  attendance  of  an  interpreter  who  had  neglected  to  obey  a  subpoena.     The 
learned  Judge  said  that  "a  similar  question  had  heretofore  arisen  as  to  experts, 
and  he  had  declined  to  issue  process  to  arrest  in  such  cases.     When  a  person  has 
knowledge  of  any  fact  pertinent  to  an  issue  to  be  tried,  he  may  be  compelled  to 
attend  as  a  witness.     In  this  all  stand  upon  equal  ground.      But  to  compel  a 


APPENDIX.  5D3 

person  to  attend  merely  because  he  is  accomplished  in  a  particular  science,  art,  or 
profession,  would  subject  the  same  individual  to  be  called  upon  in  every  cause  in 
which  any  question  in  his  department  of  knowledge  is  to  be  solved.  Thus,  the 
most  eminent  physician  might  be  compelled,  merely  for  the  ordinary  witness' 
fees,  to  attend  from  the  remotest  part  of  the  district  m  which  a  medical  question 
might  arise.  This  is  so  unreasonable  that  nothing  but  necess.ty  can  justify  it. 
The  case  of  an  interpreter  is  analogous  to  that  of  an  expert.  It  is  not  necessary 
to  say  what  the  Court  would  do  if  it  appeared  that  no  other  interpreter  could  be 
obtained  by  reasonable  effort."  In  the  matter  of  Roelker,  1  Sprague's  1  ec.,  276. 
G.  When  a  physician,  du  ing  his  attendance  upon  a  patient,  (the  defendant,) 
having  also  attended  patients  infected  by  small  pox,  and,  by  want  of  proper  care, 
communicated  the  infection  to  the  defendant  and  his  family,  making  it  necessary 
for  further  attendance  and  an  increased  bill ;  it  was  held,  in  an  action  by  the 
physician  to  recover  lor  his  services,  that  no  recovery  could  be  had  lor  the  addi- 
tional service  rendered  necessary  by  the  plaintiffs  own  want  of  proper  care ;  and 
the  defendant  was  entitled  to  a  further  deduction  from  that  portion  of  his  bill 
which  he  had  sustained  by  bodily  suffering  and  loss  of  time.  Piper  v.  Menifee, 
12  B.  Monr.,  465. 

6.  The  usual  price  per  visit  must  be  charged,  or  a  notice  given  of  change  of 
price.     Sidener  v.  Fetter,  19  Ind.,  310. 

7.  Medical  attendance  on  paupers,  or  persons  sick  with  contagious  disease, 
cannot  be  charged  to  the  overseers  of  the  poor  or  to  the  town  without  a  special 
contract.     Evarts  v>.  Adams,  12  Wend.,  449;  Kellogg  v.  St.  George,  28  Maine,  2C5. 

8.  Under  a  contract  that  if  there  is  no  cure  there  shall  be  no  pay,  the  physi- 
cian cannot  recover  for  medicines  unless  there  has  been  a  performance  of  the 
contract.     Smith  v.  Hyde,  19  Vt.,  54. 

9.  An  unlicensed  physician  cannot  maintain  an  action  for  services  where  the 
statute  requires  a  diploma  or  license,  neither  before  nor  after  the  repeal  of  such 
statute.     Bailey  v.  Mogg,  4  Denio,  GO;   Warren  v.  Saxby,  12  Vt ,  146.     See  per 
contra,  Hewitt  v.  Wilcox,  1  Mete.,  154;  Durand  t>.  Grimes,  18  Gray,  69U;  Jordan  v. 
B.  &  B.,  19  Alab.,  238. 

10.  The  administration  of  drugs  must  conform  to  State  laws,  though  covered 
by  a  patent.      Jordon  v.  Overseers  of  Dayton,  4  Ohio,  295;   Smith  «.  Tracy,  2  Hall 
Sup.  Ct.  (N.  Y  )  R.,  465;  Thompson  v.  S.aats,  15  Wend.,  395. 

11.  If  a  defendant,  when  sued  for  fees,  pleads  that  the   plaintiff  was  not 
licensed  to  practice,  having  employed  him  as  a  physician,  the  defendant  must 
prove  that  he  was  not  so  licensed.     Dickinson  t.  Gordy,  5  Rob.,  489;  Provosty  v. 
Nichols,  11  Martin,  21;  19  Alab.  238. 

12.  The  case  of  Walsh  v.  Sayer,  in  the  Supreme  Court  of  New  York,  estab 
lishes  the  right  of  a  surgeon  to  demand  personal  inspection  of  the  party  alleged 
to  be  the  subject  of  malpractice  previous  to  the  trial  of  the  case.     Jon^s,  J.,says: 
"I  am  aware  there  is  no  recorded  case  of  an  app  ication  for  any  such  discovery 
having  been  granted;  but  at  the  same  time  there  is  no  recorded  case  of  any  appli- 
cation having  been  denied.      Nor  have  I  overlooked  the  fact  that  the  Court  of 
Chancery  established  many  rules  for  its  guidance  in  granting  and  refusing  a 
discovery  asked  for ;   but  none  of  these  rules  are  antagonistic  to  granting  this 
motion.     The  fact  that  the  discovery  asked  is  a  portion  of  the  body,  at  first  dis- 
posed the  mind  to  regard  it  unfavorably  on  the  ground  of  delicacy.    But  it  is  not 


594  APPENDIX. 

the  first  case  in  which  such  an  examination  has  been  had."  2  Black.  Corns.,  333; 
5  Paige  R.,  554;  1  Beck's  Med.  Juris.,  116,  125,  204,  205;  Walsh  v.  Sayre,  50,  51, 
pamphlet  edition,  Geo.  H.  Shaw,  New  York. 

13.  The  general  principles  applicable  to  physicians  and  surgeons  are  well 
unfolded  in  a  recent  case  in  Maine,  where  it  was  said  that — 

"  Physicians  and  surgeons  who  offer  themselves  to  the  public  as  practitioners, 
impliedly  promise  thereby  that  they  possess  the  requisite  knowledge  and  skill  to 
enable  them  to  treat  such  cases  as  they  undertake  with  reasonable  success. 

"  This  rule  does  not  require  the  possession  of  the  highest,  or  even  the  average 
skill,  knowledge,  or  experience,  but  only  such  as  will  enable  them  to  treat  the 
case  understand ingly  and  safely. 

"  The  law  also  implies  that,  in  the  treatment  of  all  cases  which  they  undertake, 
they  will  exercise  reasonable  and  ordinary  care  and  diligence. 

"They  are  also  bound  always  to  use  their  best  skill  and  judgment  in  deter- 
mining the  nature  of  the  malady,  and  the  best  mode  of  treatment,  and  in  all 
respects  to  do  their  best  to  secure  a  perfect  restoration  of  their  patients  to  health 
and  soundness. 

"  But  physicians  and  surgeons  do  not  impliedly  warrant  the  recovery  of 
their  patients,  and  are  not  liable  on  account  of  any  failure  in  that  respect,  unless 
through  some  default  of  their  own  duty,  as  already  defined."  Patten  v.  Wiggin, 
61  Maine,  594. 

14.  In  insanity,  the  following  rulings  in  respect  to  wills  are  important : 

The  testator  must,  at  the  time  of  the  execution  of  a  will,  have  been  of  sound 
disposing  mind  ;  that  this  does  not  imply  that  the  powers  of  the  mind  have  not 
been  weakened  or  impaired  by  disease  or  old  age ;  that  it  is  not  sufficient  that 
the  testator  was  able  to  answer  questions  rationally,  nor  was  it  necessary  that  he 
should  have  been  of  sufficient  capacity  to  engage  in  complex  and  intricate  busi- 
ness. If  he  was  at  the  time  capable  of  understanding  the  nature  of  the  business 
and  the  elements  of  the  will — that  is,  the  nature  and  extent  of  his  property,  and 
the  persons  to  whom  he  meant  to  convey  it,  and  the  mode  of  distribution — it  was 
sufficient.  Converse  v.  Converse,  21  Vt.,  168;  Redfield  on  Wills,  §9,  n.  2. 

In  Connecticut,  the  Court  held  that  all  which  is  necessary  to  testamentary 
capacity  is  an  understanding  of  the  nature  of  the  business  the  testator  was 
engaged  in,  a  recollection  of  the  property  he  means  to  dispose  of,  and  of  the 
persons  to  whom  he  means  to  convey  it,  and  of  the  manner  he  means  to  dis- 
tribute it  among  them.  Comstock  v.  Hadlyme,  8  Conn.,  265;  Kinne  r.  Kinne,  9 
Conn.,  102. 

In  Pennsylvania,  it  was  held  that  a  less  degree  of  mental  imbecility  is  neces- 
sary to  invalidate  a  will  than  would  be  ground  of  acquittal  from  a  criminal 
charge.  McTaggart  v.  Thompson,  14  Penn.  St.,  149. 

The  important  question  to  be  settled  is — Whether  the  document  claimed  to 
be  the  will  of  the  testator  was  really  the  product  of  his  own  free  will  and  action, 
or  that  of  others ;  in  short,  whether  it  is  the  will  of  tfte  testator,  or  the  act  of  some 
other  person  or  persons?  1  Redfield  on  Wills,  132. 


INDEX. 


A. 

A.BORTION, — FCETICIDE. 

adjudicated  cases   .n,  251. 

causes  and  frequences  of,    243,  244. 

laws  relating  to,  250. 

Rex  v.  Wycherly,  adjudicated  case  in, 

251. 
ACCIDENTS, 

latent  diseases  developed  by,  41. 
ACROMIAN  PROCESS, 

fracture  and  surgical  treatment  of,  88. 
AGE, 

influence  in  surgical  practice,  42. 
ALLEGATIONS, 

must  be  proved  as  laid,  148,  149. 
AMPUTATION, 

malpractice  in,  56. 

importance  of  the  operation,  57 — 59, 

in  disease  of  the  joint,  60. 
gangrene,  61 — 63. 
malignant  disease,  64. 
hemorrhage,  64. 
ulceration  of  the  skin,  65. 
compound  fractures,  66 — 80. 
dislocations,  68,  69. 
Howard  v.  Grover,  70—80. 
AMERICAN  JOURNAL  OF  INSANITY, 

on  moral  insanity,  402,  403,  404. 
ANATOMY, 

its  importance  to  the  surgeon,  51 — 53. 

in  articulations,  107. 
ANKLE  JOINT, 

dislocation  and  fracture  of,  135. 

Sargent's  case,  135. 
ANCHYLOSIS, 

of  wrist  and  ankle,  94. 
APOTHECARIES, 

laws  applicable  to,  107. 

adjudicattu  ^ases, 

Hollenkemp's  case,  187. 
ARSENICAL   POISONING, 

analysis  of  Taylor,  459 — 492. 

elimination  of  arsenic,  457. 

fatal  doses,  454. 

post  mortem  examination,  456. 

properties  of  arsenic,  453. 

symptoms  in,  454 — 455. 

adjudicated  cases  in,  494 — 525. 

Rex  v.  Mary  Blandy,  494—496. 


Arsenical  Poisoning — Continued. 
Rex  v.  Elizabeth  Fanning,  496,  497. 
Rex  v.  Dr.  Snell,  497,  498. 
Rex  v.  Ann  Barber.  498—500. 
Rex  v.  Mary  Smi.h,  500. 
Rex  v.  Wisiuirt,  500,  501. 
Commonwealth  v.  Chapman  and  Mi- 

na,  503. 

The  State  v.  Sager,  504. 
The  Commonwealth  v.  Earls,  505. 
The  People  v.  Eklridge,  505—508. 
The  People  v.  Stephens,  508—525. 


B. 


BAKER'S  CASE, 

fracture  of  tibia  and  fibu.a,  112. 
BARBARIC  SURGERY, 

natural  bone  setters,  51,  52. 
BARLOW, 

on  insanity,  414,  415. 
BASSET  v.  COLLINS  and  BARNES. 

case  of  doubtful  diagnosis,  98,  99. 
BOOKS,  MEDICAL. 

as  evidence,  331—336. 

text-books  not  admissible,  232 — 336. 

f.he  medical  witness  has  no  ground  of 
complaint,  335. 

Collier  v.  Simpson,  352. 
BRECK'S  CASE, 

alleged  malpractice  in  dressing  an  in- 
cised wound,  163 — 166. 

Prof.  Flint's  deposition  in,  163. 

Prof.  Humilton's  deposition  in,  166. 
BROUGHAM,  LORD, 

definition  of  delirium  by,  390. 
BRODIE,  SIR  B. 

on  moral  insanity,  404,  405. 


c. 


CHEMISTS, 

laws  applicable  to,  163 — 173. 

leading  cases,  173 — 197. 
CHILDREN, 

peculiar  difficulties  attending  the  treat- 
ment of,  42. 
CIRCUMSTANTIAL  EVIDENCE, 

definition  of,  266. 

Gibson,  C.  J.  on,  267. 

(595) 


INDEX. 


Circumstantial  Evidence — continued. 

examples  of,  269. 
CLIFFORD'S  CASK, 

fracture  and  dislocation,  90,  91. 
COLLINS  AND  BARNES'  CASE, 

fracture  of  femur,  98. 
COLLIKR  v.  SIMPSON. 

medical  books  as  evidence,  332. 
CoRAcoin  PROCESS, 

fracture  of,  88. 

CONDYLE, 

fracture  of,  case,  90. 
COMPOUND  FRACTFRES, 

definition  ami  treatment  of,  77 — 79. 

complicated  with  simple  fractures,  80. 
COMMINUTED  FRACTURE, 

of  the  fibula  and  tibia,  McWha's  case, 

118. 
CRIMINAL  MALPRACTICE, 

laws  applicable  to,  198 — 201. 

Long's  cases,  208,  220. 

Thompson's  case,  232. 

Van  Butchell's  case,  201. 

Williams'  case,  204. 
CULVER  v.  HASLEM, 

laymen's  evidence   in  insanity,   425, 
'426. 

D. 

DAMAGES, 

measure  of,  in  personal  injuries,  190. 
DECLARATION,  , 

counts  in,  135,  136,  143. 
DEFORMITIES  AFTER  FRACTURES, 

Prof.  Hamilton's  cases,  85,  86,  104. 
of  the  humerus,  92. 
of  the  radius,  94,  95. 

prognosis  in  fractures  imperfect,  86. 

American  surgery  compared  with  Eng- 
lish, 87. 

White's  case,  fracture  of  the  surgical 
neck  of  the  humerus,  89. 

Clifford's  case,  difficulty  in  the  diagno- 
sis, 90. 

non-union  of  shaft  of  humerus  and 
ulna,  94. 

of  radius  and  ulna,  96. 

of  the  femur,  97. 

shortening  almost  universal,  97. 

Basset  v.  Collins  and  Barney,  fracture 
within  this  capsule  of  the  head  of 
the  femur,  98—100. 

shortening  of  femur,  litigation,  101, 
102. 

alleged  tight  bandaging,  103. 
DEN  10.  J. 

on  lay  evidence  in  insanity,  426 — 434. 


DELUSION, 

in  what  it  consists,  381,  389. 
Wood's  case,  384. 
Haskell's  case,  385—388. 
DEWITT  v.  BAKLEY. 

insanity,  laymen's  evidence  in,  426 — 

430." 
DIAGNOSIS, 

in  accidents  of  the  joints,  106. 
DILIGENCE, 

what  degree  required  of  the  physi- 
cian, 23,  24,  127. 
DISEASE, 

its  influence  in  surgery,  40. 
malignant,  amputation  in,  64. 
DISLOCATIONS, 

diagnosis  in  difficult  dislocations  and 

fractures,  90,  98,  100. 
irreducible,  amputation  in,  68. 
time  when  reducible,  108. 
anatomical  knowledge  essential,  105. 
mistakes  in,  106. 
of  ankle  joint,  115. 
Thompson's  case,  115. 
applications  for  reduction,  109. 
DISSECTION, 

importance  of,  to  the  surgeon,  53,  54. 
DREW  v.  CLARK, 

insanity,  delusion,  381 — 389. 
DRUGGISTS, 

their  responsibility,  and  principles  of 

law  applicable  to,   169,  170. 
American  Pharmaceutical  Association, 

suggestions  of.  170 — 173. 
Thomas  and  wife  v.  Winchester,  173 

—187. 
Fleet  &  Semple  v.  Hollenkemp,  187 

—194. 
DRUNKENNESS, 

insanity  from,  413. 
DYING  DECLARATIONS, 

the  medical  witness,  to  observe,  317, 
319. 

E. 
EDUCATION, 

may  be  shown  to  rebut  the  charge  of 

ignorance,  140 — 143. 
elementary,  not  sufficient,  56. 
ERRORS, 

of  judgment,  the  physician  not  liable 

for,  40,  142. 
EVIDENCE, 

in  general,  263—267. 
circumstantial,  265 — 272. 
impressions,  belief,  270,  271. 
form  of    hypothetical    question,  277 
309,  310! 


INDEX. 


Evidence.  —  Continued. 

manner  of  the  witness,  272. 
medical  evidence,  285,  318. 


surgery  of,  145. 

alleged  malpractice  in  treating  the,  146. 
EXPERTS, 

who  are  experts,  275,  293. 
opinions  defined,  273,  277. 
what  degree  of  knowledge  required, 
283,  284.  293,  294. 

F. 

FEMUR, 

fracture  of,  shortening,  97. 

transverse  fracture  of,  97,  98. 

litigation,  98—102. 
FIBULA, 

fractures  of,  103. 
FINGERS, 

anchylosis  of,  94,  95. 
FLEET  &  SEMPLE  v.  HOLLENKEMP, 

responsibility  of  druggists,  187. 
FLINT,  PROF., 

deposition  in  Breck's  Case,  163  —  166. 

as  a  witness,  163. 
FCETICIDE.  —  ABORTION, 

definition  of,  243. 

causes  of,  243,  244. 

extent  of  the  evil,  244  —  247. 

the  law  of,  250—254. 

Madame  Restell's  case,  254  —  260. 
FOOT, 

mortification  of—  suit  for  damages,  103. 
FRACTURES, 

treatment  of,  often  difficult,  76  —  81. 

litigation,  75,  76,  81,  82,  97,  101. 

with  dislocation,  90,  91. 

oblique,  93,  106. 

of  humerus.  proportion  of  cures,  91,  92. 

near  joints,  93. 

of  femnr,  97. 

of  tibia,  103. 

of  fibula   and   tibia,    McWha's   case, 
118—135. 

compound,  47. 

FREEMAN  v.  THE  PEOPLE.     Partial  in- 
sanity, 391,  392. 

G. 

GALLAGHER  AND  WIFE,  v.  THOMPSON, 
dislocation  and  anchylosis,  115. 

GANGRENE, 

cause  of  amputation,  70. 

GENERAL  PRINCIPLES, 

applicable  to  medical  men,  19. 


GRANT  v.  THOMPSON, 

insanity— unprofessional  opinions,  431. 
GROVER'S  Case, 

amputation,  70. 

H. 

HAMILTON,  PROF., 

reports  on  fractures  and  dislocations, 
85.  86,  104. 

deposition  in  Breck's  case,  166. 

as  a  witness,  305. 
HASKILL'S  CASE, 

insanity,  385. 
HEMORRHAGE, 

amputation  in,  64. 
HEREDITARY  DISEASE, 

its  influence  in  surgery,  40. 
HIP, 

dislocation  of,  106. 
HISTORY  OF  MEDICINE,  285. 
HOLLENKEMP'S  CASE,  187. 

druggists,  duties  of,  187. 
HOLT  v.  BRECK, 

amputation  from  incised  wounds,  165. 
HOWARD  v.  GROVER, 

amputation,  70 — 74. 
HUMERUS, 

non-union  of,  94. 

oblique  fracture  of,  91. 

proportion  of  imperfect  cures,  92. 

fracture  of  upper  end,  88,  89. 

HUNTINGTON'S  CASE, 

moral  insanity,  400,  420,  421. 
Profs.  Parker's  and  Oilman's  testimo- 
ny in,  341,  342. 
HYPOTHETICAL  QUESTIONS, 
form  of,  277,  309,  310. 
form  of  question  changed,  310. 


I. 


INSANITY, 

but  little  settled  on  the  subject   of, 

338—340. 
difficulties  of  this  subject  generally, 

340—358. 

Profs.  Parker  and  Gilman  on,  341. 342. 
the  Huntington  case,  343,  400,  419, 

420. 

the  material  theory,  340 — 343. 
the  immaterial  theory,  344. 
the  mind  itself  may  be  diseased — Sir 

B.  Brodie,  344.  " 
Dr.  Carpenter's  view,  346. 
eccentricities  of  genius,  347,  348. 
cunning  of  the  insane,  348 — 350. 


598 


INDEX. 


Ins.ini  ty . — Contin  ued. 

classification  of,  absurd,  353,  355. 

courts,  position  of,  on,  356. 

Bishop  on,  362,  369. 

Capron,  J  udge,  on,  363. 

Kenyon,  Lord,  on,  364. 

Ray,  on,  357—362. 

Reese,  on,  367 — 372. 

ignored  in  schools,  368. 

witness  on,  in  court,  373 — 379. 

no  definition  of,  375 — 377. 

position  of  courts  on,  varied,  379 — 384. 

Kale's  rule,  379. 

Collinson's  rule,  380. 

Mitford's  rule,  380. 

Erskine's  rule,  381. 

Hadfield's  case,  382—384. 

delusion,  381 — 389. 

Wood's  case,  partial,  384. 

Haskill's  case,  partial,  385 — 388. 

adjudicated  cases  on,  395. 

Hosier  v.  The  Commonwealth,  395. 

moral  insanity,  400. 

American  Journal  of  Insanity,  402. 

Brodie,  on,  404,  405. 

from  passion,  411,  412. 

Sickles'  case,  416 — 420. 

non-professional  opinions  on,  422 — 

434. 

lucid  intervals,  437. 
Brougham's  definition  of,  390. 
Barlow  on,  414,  415. 

J. 
JOINTS, 

amputation,  near,  67. 

dislocation  of,  106. 

study  of,  neglected,  106. 

stiffness  of,  135,  144. 
JUDGMENT, 

surgeon  not  responsible  for  errors  of, 

46,  142. 
JURORS, 

verdicts  of,  72,  73. 

K. 

KENDALL'S  CASE, 

trade  mark,  192. 
KNOWLEDGE, 

degree  of,  required,  20,  142. 

what  constitutes  a  witness  an  expert, 
283. 

L. 
LATENT  DISEASES, 

complicate  surgical  treatment,  40. 
LEIOHTON  v.  SARGKNT, 

dislocation  of  ankle,  135. 


LONGMKID  V.  HOLLIDAY, 

negligence,  immediately  dangerous  to 

life,  185. 
LONG'S  CASES, 

criminal  malpractice,  208,  220. 

If. 

MANSLAUGHTER, 
by  medical  men,  183,  240. 

McCANDLESS  V.  McWHA,    * 

malpractice,  118. 
McMuLLKN's  CASE, 

ophthalmic  surgery.  146. 
MEDICINE. 

a  progressive  science,  56. 

the  practice  of,  294. 
MEDICAL  BOOKS, 

as  evidence,  331 — 337. 
MEDICAL  EDUCATION, 

may  be  shown  to  rebut  charge  of  ig- 
norance, 140. 
MEDICAL  EVIDENCE, 

history  of,  285. 

its  distinctive  character,  307. 

importance  of,  288 — 292. 

Dr.  Coventry's  suggestions  on,  305. 

its  growth  and  literature,  286.  287. 

its  importance  illustrated,  289 — 292. 

general  importance  of,  295,  296. 

errors  of  witnesses,  302.  303. 

has  been  neglected,  304. 

Hornblower's,  C.  J.,  opinion  of.  306. 

Capron's,  Judge,  opinion  of,  306. 

Hamilton,  Prof.,  as  a  witness,  309. 

Flint,  Prof.,  as  a  witness,  309. 

hypothetical  questions,  309,  310. 

difficult  questions,  312 — 317. 

dying  declarations,  318. 
MEDICAL  PROFESSION, 

American,  34,  35. 
MEDICAL  WITNESS, 

on  the  stand,  307—309. 
MORAL  INSANITY, 

general  subject  of,  400. 

Brodie  on,  404,  405, 

Reese,  on,  406. 
MORTIFICATION, 

of  foot, — malpractice,  103. 

N. 

NEGLIGENCE, 

in  apothecaries,  litigation,  173. 
in  physicians   and  surgeons,  22,    33,. 
46/142. 


INDEX. 


599 


NON-UNION, 

of  humerus  after  fracture,  94. 
NATURAL  BONE-SETTER, 

oelief  in,  51. 

0. 

OBLIQUE  FRACTUKES, 

deformities  from,  96. 

of  the  femur,  shortening,  97. 

of  fibula  and  tibia,  118. 
OBSTETRICS, 

malpractice  in  Restell's  case,  204. 
OHIO  STATE  MEDICAL  SOCIETY, 

report  of,  on  malpractice,  8,  83,  84. 
OLD  AGE. 

influence  of,  in  surgery,  43. 
OPERATIONS, 

decrease  of,  50. 
OPHTHALMIC  SURGERY, 

malpractice  in,  145 — 162. 
OPINIONS, 

as  evidence,  273—275,  422. 

P. 

PALMER'S  CASE, 

strychnine  poisoning,  543. 
PATHOLOGY, 

importance  of,  to  the  surgeon,  37 — 53. 
PATIENT, 

duties  of,  29—32,  127. 

entitled  to  the  application  of  the  im- 
provements of  the  science,  128. 
PARTIAL  INSANITY, 

Erskine's  examples  of,  383—385. 

Noyes'  examples  of,  385. 

Haskell's  case,  385—388. 

Oilman  on,  389. 

Parker  on,  389. 

the  general  subject,  385 — 389. 
PHYSIOLOGY, 

importance  of,  to  surgeon,  51 — 53. 
PHYSICIAN, 

not  a  warrantor,  142. 

gross  carelessness  of,  27. 

contract  of,  142, 
PRIVILEGED  COMMUNICATIONS. 

the  medical  witness,  319. 

Duchess  of  Kingston's  case,  319.     m 

Common  law  rule,  320. 

John  Gordon  Smith,  and  Charles  A. 
Lee,  upon,  320,  321. 

the   medical  witness  not   privileged, 
322—328. 

the  attorney  as  a  privileged  witness, 
325,  326. 


Privileged  Communications. — continued. 

the  criminal's  privilege,  326,  327. 

voluntary    information    by    medical 
men,  328. 

the  cases  of  Drs.  Uhl  and  Mott,  328. 
PRENTICE'S  CASE, 

fracture  of  arm,  110. 
POISONING, 

general  observations  on,  439 — 444. 

post  mortem  appearance  in,  456. 

the  medical  witness,  445,  446. 

compensation  of  witnesses,  447,  525. 

evidence  in  homicide  by,  449,  450. 

law  of  the  subject.  450—452. 

Q. 

QUACKERY, 

no  allowance  for,  in  law,  47,  128. 
why  it   attaches   itself  to  medicine, 
134,  294. 

R. 

RADIUS, 

proportion  of  imperfect  cures  in  frac- 
tures of,  94. 

difficulties  in  treatment,  95,  96. 

fracture  of,  at  wrist,  95. 

radius  and  ulna,  fracture  of,  96. 
RAMBLER  v.  TRYAN, 

insanity,    non-professional    opinions, 

430. 
REASONABLE  KNOWLEDGE,  m 

required  of  the  surgeon,  48,  126, 142, 
REESE,  DR. 

on  moral  insanity,  406. 

on  medical  evidence,  367. 

on  medical  evidence  in  insanity,  372. 
REX  v.  LONG, 

criminal  malpractice,  208. 

second  case,  220. 
REX  v.  SIMPSON, 

criminal  malpractice,  200. 


s. 


SARGENT'S  CASE, 

dislocation  and  fracture  of  ankle,  135. 
SEAR  v.  PRENTICE, 

dislocation,  110. 
SEX, 

influence  of,  in  disease,  42. 
SKILL, 

what  degree  required  of  the  surgeon, 
20,  22,  55,  56,  73,  127. 

extraordinarv,  55.  56,  128. 

McWha's  case,  118,  121. 


600 


INDEX. 


SICKLES'  CASE, 

insanity,  416. 
SHOULDKU  JOINT, 

diagnosis  in  injuries  of,  difficult,  93. 
SHORTENING, 

in  fracture,  85. 

of  the  femur,  97. 
SIMPLE  AND  COMPOUND  FRACTURES, 

treatment  of,  79,  80. 

oblique,  91. 
SNKLL'S  CA>K, 

fracture  of  humerus,  96. 
STATE  OF  IOWA,  v.  HINKLB, 

malpractice,  medical  opinions,  283. 
STRYCHNIA, 

poisoning  by,  526. 

analysis  of,  526 — 530. 

symptoms,  530. 

medical  testimony  in,  534. 

the  Palmer  case,  543. 

Curling's  testimony  in,  543. 

Brodie's  testimony  in,  537. 

Christison's  testimony  in,  540. 
SUKGEKY, 

the  peculiar  difficulties  of.  40,  45. 

of  comparatively  recent  origin,  52. 

manual  dexterity  in,  49. 

the  surgeon  not  a  warrantor,  142. 

when  not  liable,  127. 

importance  of  his  position,  51. 

T. 

TEMPERAMENT, 

influence  in  surgery,  42. 
TESSYMOND'S  CASK, 

liability  of  druggists,  170. 
THE  PEOPLE  v.  MADAM  KESTELL. 

abortion,  254. 
THOMAS  AND  WIFE,  v.  WINOHESTEB, 

liability    of    druggists  and    chemists, 

U59,'  173. 
THOMPSON'S  CASE, 

dislocation  of  ankle  joint,  115. 
TIBIA  AND  FIBULA, 

fracture  of,  McWha's  case,  118. 


TIME, 

length  of,  for  extension,  83,  84. 
TRANSACTION  OF  AMERICAN  MEDICAL 
ASSOCIATION, 

Prof.  Hamilton's  Reports,  85—104. 

report  on  druggists,  170. 
TRANSVERSE  FRACTURES, 

shortening  in,  97,  98. 

overlapping  in,  83. 

u. 

ULCERATION, 

of  skin,  amputation,  45. 
ULNA, 

fracture,  of,  96. 
UNCERTAINTY  IN  MEDICINE, 

the  subject  generally,  44     16. 

V. 

VARIANCE, 

in  allegations,  140. 
VAN  BUTCHELL'S  CASE, 

criminal  malpractice,  201. 
VERDICTS, 

intemperate  and  extravagant,  72. 

w. 

WARRANTOR, 

surgeon    not  a  warrantor,  except    oy 

contract,  142,  162. 
WHITE'S  CASE, 

fracture  of  humerus,  87. 
WILFUL  MALPRACTICE. 

Van  Butchell's  case,  201. 

Williamson's  case,  204. 

Long's  cases,  208,  220. 
WILLS, 

law  as  to,  435. 

impeachment  of,  436. 
WINCHESTER'S  CASE, 

liability  of  druggists,  173. 

WlNTKRBOTTOM  V.   WRIGHT, 

liability  of  druggists,  183. 
WOUNDS, 

definition,  etc.,  313 — 316. 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  it  was  borrowed. 


MRMJBRARV  UUSIJB 


A    000510035     9 


!  w  uu 

E52m 
1881 


Elvell,  John  J 

A  medico-legal  treatise  on  malpractice  med 
evidence,  and  insanity,  comprising  the  eleme 
of  medical  jurisprudence 


MEDICAL  SCIENCES  LIBRARY 


UC  IRVINE  LIBRARIES 


3  1970  01722  7502 


B 

" 


v.  '••'  • 


